Koduri (Migration)

[2024] AATA 3653

Koduri (Migration) [2024] AATA 3653 (4 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bharath Koduri

REPRESENTATIVE:  Mr Adesh Singh Kandhari

CASE NUMBER:  2412809

HOME AFFAIRS REFERENCE(S):          BCC2021/1510628

MEMBER:Gabrielle Cullen

DATE:4 October 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.214 of Schedule 2 to the Regulations.

Statement made on 04 October 2024 at 1:56pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – course enrolment confirmed – access to available funds in bank account – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.214

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 May 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 August 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant had not provided sufficient evidence of financial capacity.

4. The applicant applied for review on 21 May 2024 and attached the decision of the Department.

5. With  his application he provided a COE indicating enrolment in a Master of Business Administration from 18 July 2022 to 14 July 2024.

6. On 15 July 2024, the Tribunal sent the applicant a letter requesting further evidence to meet cl.500.214, outlining the information to be provided and providing a link to the relevant Ministerial Instrument, LIN 19/19.

7. The applicant provided the following evidence:

   ·A letter of enrolment from Holmes Institute confirming his enrolment in the Master of Business Administration (Professional) course to 15 November 2024

   ·Evidence of tuition fees paid for the current course of study in the sum of $43,700.00 as at July 2024

   ·A bank statement from the Commonwealth Bank confirming he holds a balance of $31,000.43 as at 24 July 2024.

   ·Academic transcript from Holmes Institute showing his progress and enrolment status.

8. Following a letter from the Tribunal raising its concern as to his lack of enrolment, on 4 October 2024 the applicant provided a further letter from Holmes Institute confirming his enrolment to 15 November 2024. As the PRISMS record did not show his continued enrolment, the Tribunal on 4 October 2024 contacted Holmes Institute and they confirmed his enrolment in the Master of Business Administration (Professional) course to 15 November 2024. The applicant advised Holmes Institute would not issue him with a CoE as he does not hold a Student visa and provided a screenshot of an email form them confirming this.

9. He also provided evidence of fees paid of $4,550 on 19 June 2024 and $4,500 on 25 July 2024.  

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant has genuine access to funds and satisfies cl 500.214 of Schedule 2 to the Regulations.

12. Clause 500.214 requires the applicant to meet certain financial requirements. If the applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl 500.214(3). All primary applicants must also satisfy the Tribunal that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia, as well as the costs and expenses of any members of their family unit who will be in Australia: cl 500.214(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.

13. To meet subcls.500.214(1) and (2), the Tribunal must be satisfied that the applicant will have genuine access to sufficient funds available to meet costs and expenses while the applicant holds the visa.

    Has the applicant provided evidence of financial capacity in accordance with the instrument?

14. The requirements for evidence of financial capacity for cl 500.214(3) are set out in Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (the Instrument), which is attached to this decision.

15. The applicant has provided evidence of a money deposit in his name held with CBA in the sum of $31,000.43. CBA is a commercial bank and therefore he has shown evidence of a money deposit held with a financial institution that satisfies the requirement of cl 10 of the Instrument.

16. On the basis of the above, the Tribunal is satisfied that the applicant meets cl 500.214(3).

    Are there sufficient funds available to meet costs and expenses while the applicant holds the visa?

17. The Instrument specifies that the applicant must demonstrate sufficient funds to meet the identified costs and expenses for himself, and if necessary, each member of her family unit, as follows:

    i.Living costs; and

    ii.Course fees; and

    iii.Travel expenses.

    Living Costs

18. The evidence from the education provider indicates he will complete the course on 15 November 2024. The Tribunal calculates he has 42 days of study remaining.

19. As the applicant applied for the visa on 2 August 2021, the relevant instrument is LIN19/198. is not subject to the recent amendment to that instrument, LIN23/170, as this only applies to applications made on or after 1 October 2023 or any further amendments following that date.

20. The living costs as set out in the relevant Instrument are $21,041 for a period of 12 months or more. The applicant has no other members of her family unit in his visa application; therefore, he is required to demonstrate costs for himself for this period of  42 days which amounts to $2,421.16 .

    Course Fees

21. According to the Instrument, course fees are calculated by reference to the length of the applicant’s period of study in Australia, minus any amount already paid. If the duration, or remainder, of the applicant’s period of study is less than 12 months, the course fees are for the course of study or the remaining components of the course of study. If the duration, or remainder, of study is more than 12 months, the course fees are for the first 12 months of the period of study in Australia. Where the course fees are wholly or partly prepaid, the relevant course fee would be the balance.

22. The ‘period of study’ is  defined in the notes section to s 6(2)(b)(iii) of the current instrument (LIN 19/198). As the applicant was studying the first course  after the day of application the period of study begins on that day being 18 July 2022. The first 12 months therefore ends on 18 July 2023.

23. The evidence indicates the applicant has paid all fees apart from the remaining courses he will study in 2024.

24. Course fees therefore amount to $0.

    Travel expenses

25. This item is for the cost of the applicant travelling to return to their home country from Australia at the conclusion of their visa. It is noted that the travel costs for a one-way ticket to India can vary but the reasonable cost is estimated by the Tribunal to be in the sum of $1,000.

    Total expenses

26. In accordance with LIN 19/198, the Tribunal finds that the applicant’s total course fees, living costs and travel expenses for his remaining period of her course of primary study are:

    Living costs                $2,421.16

    Course fees               $0

    Travel expenses        $1,000

    Total   $3,421.16

27. The applicant is therefore required to give evidence of sufficient funds to meet expenses totalling $3,421.16.

28. The applicant has provided a bank statement from CBA indicating he holds in his account $31,000.43 as at 24 July 2024. This amounts to more than the required amount of $3,421.16.

29. The Tribunal is therefore satisfied that the applicant has sufficient funds.

30. For these reasons, the applicant meets cl 500.214(2) of Schedule 2 to the Regulations.

    Will the applicant have genuine access to the funds?

31. To meet cl 500.214(1), the Tribunal must also be satisfied that the applicant will have genuine access to the funds referred to above.

32. The applicant has provided evidence of funds in his own name in the sum of $31,000.43. As the funds are in his name it accepts he will have access to them. On the basis of this evidence the Tribunal is satisfied that he has genuine access to his own funds.

33. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214.

34. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

35. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.214 of Schedule 2 to the Regulations.

    Gabrielle Cullen
    Senior Member

    
    

    Attachment – LIN 19/198 – Financial capacity instrument (extract)

    6Subclause 500 (Student) visa—primary applicants

    (1)For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5) or (6).

    Note: For primary applicant, see section 4 of Part 1 to this instrument.

    (2)The evidence of financial capacity

    (a)is in the form specified in section 10; and

    (b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:

    (i)travel expenses; and

    (ii)the following living costs and expenses:

    (A)if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD21,041 (annual living costs); and

    (B)if the primary applicant intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iii)the following course fees, minus any amount already paid:

    (A)if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study or the remaining components of the course of study; or

    (B)If the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months – course fees for the first 12 months of the period study in Australia; and

    Note : The period of study is the period beginning at one of the following commencement periods and ending on the final day of the applicant’s final course of study:

    (a)if the applicant’s first course of study commenced after the date of application – on the first day of the first course of study; or

    (b)if the applicant’s first course of study commenced before the date of application – on the date of application.

    (c)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of each secondary applicant making a combined application with the primary applicant:

    (i)travel expenses; and

    (ii)for each secondary applicant who intends to stay in Australia for a period of 12 months or more – the following costs (annual living costs):

    (A)for a spouse or de facto partner - AUD7,362 and

    (B)for a dependent child - AUD3,152; and

    (iii)for each secondary applicant who intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and

    (iv)the following school fees for each school-age dependant:

    (A)if the school-age dependant intends to stay in Australia for more than 12 months - AUD8,296 (annual school costs); or

    (B)if the school-age dependant intends to stay in Australia for less than 12 months – the pro rata equivalent of annual school costs, calculated as specified in section 11; or

    (C)if the school-age dependant is enrolled in a course of study at a State or Territory government school where the fees have been waived, and the Primary Applicant is enrolled in a course as a doctoral degree student, a Foreign Affairs student, a Defence student or a Commonwealth sponsored student – nil.

    Note: For secondary applicant, see section 4 of Part 1 to this instrument

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary applicant’s parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:

    (i)if there is no secondary applicant– at least AUD62,222; or

    (ii)if there is a secondary applicant – at least AUD72,592.

    (4)The evidence of financial capacity is the primary applicant’s completed AASES form.

    Note: AASES form is defined in regulation 1.03 of the Regulations to mean for a secondary exchange student, an Acceptance Advice of Secondary Exchange Student form from the relevant State or Territory education authority, containing the following declarations:

    (a)a declaration made by the student’s exchange organisation, accepting the student;

    (b)a declaration made by the student’s parent, or the person or persons having custody of the student, agreeing to the exchange.

    (5)If the primary applicant is a Foreign Affairs student – the evidence of financial capacity is a letter of support from the Department of Foreign Affairs and Trade.

    (6)If the primary applicant is a Defence student – the evidence of financial capacity is a letter of support from the Department of Defence.

    7Subclause 500 (Student) visa—secondary applicants

    (1)For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant who is included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    (2)The evidence of financial capacity:

    (a)is in the form specified in section 10; and

    (b)demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder set out in subparagraphs 6(2)(b)(i) to (iii) of this Part; and

    (c)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary applicant making a combined application with the primary student visa holder specified in paragraphs 6(2)(c)(i) to (iv) of this Part.

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD72,592.

    (4)If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.

    (5)If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

    (6)If:

    (a)the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but

    (b)the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;

    then the evidence of financial capacity:

    (c)demonstrates that sufficient funds are available to meet the costs and expenses of the secondary applicant specified in paragraphs 6(2)(c)(i) to (iv) of this Part.

    8Subclass 500 (Student) visa – secondary applicants not included in the primary student visa holder’s application

    (1)For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant (the first secondary applicant), who is not included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).

    (2)The evidence of financial capacity:

    (a)is in the form specified in section 10; and

    (b)demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder specified in subparagraph 6(2)(b)(ii) of this Part; and

    (c)demonstrates that sufficient funds are available to meet course fees for any component of the primary student visa holder’s course of study which will be completed while the first secondary applicant is in Australia, up to an amount equivalent to fees for 12 months of the course of study, minus any amount already paid; and

    (d)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and

    (e)demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all additional secondary applicants making a combined application with the first secondary applicant.

    (3)The evidence of financial capacity:

    (a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and

    (b)demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD72,592.

    (4)If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.

    (5)If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.

    (6)If:

    (a)the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but

    (b)the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;

    then the evidence of financial capacity:

    (c)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and

    (d)demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all secondary applicants making a combined application with the first secondary applicant.

    …

    10Evidence of financial capacity

    The following forms of evidence of financial capacity are specified:

    (a)money deposit with a financial institution;

    (b)loan with a financial institution;

    (c)government loans;

    (d)scholarship or financial support.

    11Pro rata equivalent

    In this Part, the pro rata equivalent of annual costs is calculated by:

    (a)dividing the annual amount by 365; and

    (b)multiplying the resulting number by the number of days the applicant is intending to stay in Australia.