Kour (Migration)

[2023] AATA 927

Kour (Migration) [2023] AATA 927 (4 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rini Pal Kour

REPRESENTATIVE:  Mr Rahul Singh (MARN: 0901266)

CASE NUMBER:  2209991

HOME AFFAIRS REFERENCE(S):          BCC2022/1031316

MEMBER:Penelope Hunter

DATE:4 April 2023

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 April 2023 at 4:11pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– adequate evidence of genuine access to funds provided– 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 23 June 2022 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 14 March 2022. 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 evidence to satisfy the delegate that she had sufficient funds to meet her costs and expenses during the period of her extended stay in Australia.

4. The applicant appeared before the Tribunal on 3 April 2023 via telephone to give evidence and present arguments. The applicant was assisted in relation to the review and her representative also attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 satisfies cl 500.214 of Schedule 2 to the Regulations.

7. 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.

8. The applicant applied for the visa in order to undertake studies in a Diploma and an Advanced Diploma of Leadership and Management, at Brown College with course dates from 11 April 2022 to 25 May 2025. In the present case, the Minister had not made a request that the applicant to give evidence of financial capacity in accordance with cl 500.214(3). However, no evidence of financial support was provided with the visa application and the delegate determined that cl 500.214 was not satisfied as a whole.

9. The Tribunal received an application for review from the applicant on  9 July 2022. In support of  her review she has also provided to the Tribunal the following relevant documents (in summary):

   i.Letter from the Jammu and Kashmir Bank dated 22 April 2022, regarding fixed deposits of Mr Narinder Pal Singh in accounts xxxx0486 and XXXX0501, 10,82,670 INR, and supporting bank receipts.

   ii.Letter from the State Bank of India, dated 22 April 2022, regarding deposit of Narinder Pal Singh, in account XXXX4911, 11,29,085.38 INR and supporting bank receipts.

   iii.Letter from the Jammu and Kashmir Bank dated 22 June 2022, regarding deposit of Narinder Pal Singh in account XXXX2238, 8,15,616 INR, and supporting receipts.

   iv.Letter from the Jammu and Kashmir Bank dated 10 June 2022, regarding deposit of Narinder Pal Singh in account XXXX9748 and XXXX988, 5,53,207 INR, and supporting receipts.

   v.Letter from the State Bank of India, dated 10 June 2022, regarding deposit of Mrs Kawal Nain Kour, in accounts XXXX9262, 13,17,748.26 INR and supporting bank receipts.

   vi.Statement of the State Bank of India, account XXXX9876 of Mrs Kawal Nan Kour, closing balance as at 3 June 2022, 87,430.26 INR.

   vii.Affidavit of Kawal Nain Kour, confirming that Kawal Nan Kour and Kawal Nain Kour are both her names.

   viii.Affidavit of support of Narinder Pal Singh, attested 10 June 2022.

   ix.Copy of passport of Narinder Pal Singh.

   x.Copy of passport of Kawal Nan Kour.

   xi.Evidence of pension payment for Narinder Pal Singh, 19410 INR per month.

   xii.Statement of the applicant.

   xiii.CoE in a Diploma of Community Services at George Brown College, with course dates from 10 April 2023  to 6 April 2025, total tuition fee $20,000. (applicant says $24,000).

   xiv.Statement of applicant dated 22 March 2023.

   xv.Letter from the Jammu and Kashmir Bank, dated 2 January 2023, regarding deposit of Narinder Pal Singh, in account XXXX2360, 11,17,987 INR and supporting bank receipts.

   xvi.Letter from the State Bank of India, dated 11 January 2023, regarding total deposit of Narinder Pal Singh, in account XXXX4911 11,71,935 INR and supporting bank receipts.

   xvii.Letter from the Punjab National Bank, dated 30 January 2023, regarding deposit of Narinder Pal Singh, in account XXXX9750, 3,76,856 INR and supporting bank receipts.

   xviii.Letter from Jammu and Kashmir Bank, dated 2 January 2023, regarding deposit of Kawal Nain Kour, in account XXXX2238, 21,10,235 INR and supporting bank receipts.

   xix.Letter from the State Bank of India, dated 3 January 2023, regarding Kanwal Nan Kour, account XXXX9876, total deposit 19,03,976 INR and supporting bank receipts.

   xx.Letter from Jammu and Kashmir Bank dated 2 January 2023, regarding Arsh Pal Kour, total deposit in account XXX4453, 5,10,392 INR.

   xxi.Letter from Jammu and Kashmir Bank dated 3 January 2023, regarding account in the name of the applicant XXXX25215, 3.06.557.66 INR.

   xxii.Letter from the Punjab National Bank regarding account of the applicant XXXX2329, 2,83,519.06 INR.

   xxiii.Passport extract of the applicant.

   xxiv.Medical certificate of Dr Syed Hussaini dated 29 March 2023.

   xxv.Receipt for payment of fees from George Brown College

10. In anticipation of the Tribunal hearing, a request was made of the applicant to provide evidence of sufficient funds to meet the costs and expenses of her extended stay in Australia during the period of her studies.

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

11. The requirements for evidence of financial capacity for cl 500.214(3) are set out in LIN 19/198, which is attached to this decision.

12. 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.

13. The applicant has provided evidence of funds in bank accounts with the Jammu and Kashmir Bank and the State Bank of India, in the name of herself, her parents and sister. A money deposit with a financial institution satisfies the requirement of cl 10 of the Instrument.

14. 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?

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

    i.Living costs; and

    ii.Course fees; and

    iii.Travel expenses.

    Living Costs

16. The CoE’s submitted by the applicant indicate that she intends to stay in for a period of more than 12 months. The living costs as set out in the Instrument are $21,041 for a period of 12 months or more. The applicant is single and has included no other members of her family in the visa application. Therefore she is only required to demonstrate costs for herself and no others in the amount of $21,041 as per the instrument.

    Course Fees

17. According to the Instrument, if the duration, or the remainder of the applicant’s period of study in Australia is more than 12 months, the applicant is required to demonstrate funds for the course fees for the first 12 months of the period of study.

18. The applicant’s had proposed other courses when she applied for the visa under review, this was her first course, however the applicant did not complete this course of study. The first course now proposed by the applicant is her Diploma of Community Services which is to commence on 10 April 2023 and conclude on 6 April 2025. Her total fees according to her CoE are $20,000. Her fees for the first 12 months of her study are half of that amount and assessed by the Tribunal as $10,000. The applicant has provided evidence from George Brown College  that she has already paid $2,500. The remaining amount as assessed by the Tribunal is $7,500.00.

    Travel expenses

19. 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 in the sum of $1,200.00.

    Total expenses

20. 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 his course of primary study are ;

    Living costs                $21,041.00

    Course fees               $7,500.00

    Travel expenses        $1,200.00

    Total   $29,741.00

21. The applicant is therefore required to give evidence of sufficient funds to meet expenses totalling $31,041.00. She has submitted details of funds in bank accounts to the value of 78,42,957.72 INR[1], which in the assessment of the Tribunal is the equivalent of $140,945.66 AUD. [2]This is greater than calculated costs and expenses of the applicant for the duration of her course. The Tribunal is therefore satisfied that the applicant has sufficient funds to meet her costs and expenses while she holds the visa.

    [1] The Tribunal notes that in her submissions the applicant calculated a lesser sum of 78,39.923.72 INR however there are discrepancies in her recording of the amount contained in the State Bank of India account and the amount reflected in the bank correspondence.  

    [2] 7,842,957.22 INR to AUD - Indian Rupees to Australian Dollars Exchange Rate (xe.com)

22. 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?

23. 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.

24. It is noted that an amount proximate to a third of the funds that the applicant is required to produce are held her own bank accounts. The Tribunal is satisfied that she could take steps to obtain access to her own funds.

25. The balance is predominately held by her parents. The evidence before the Tribunal of the supporting account balances satisfies the Tribunal that the relevant funds have been held since at least June 2022. The applicant provided evidence that her father is a retired government employee in receipt of a regular pension. The information relating the accounts of Kawal Nan Kour confirms she is also regularly employed and in receipt of salary from which the funds have been accumulated. There is no evidence before the Tribunal that the source of the funds is not bona fide.

26. The Tribunal is satisfied of the relationship of parent and child between the applicant and Mrs Kawal Nan Kour and Mr Narinder Pal Singh. The applicant provided sworn evidence to the Tribunal that when she is in need of funds for her expenses she can make a request directly to her parents and they would transfer any funds to her immediately. There is no evidence that they would withhold financial support.

27. On the material before it the Tribunal is satisfied the applicant will have genuine access to the funds, cl 500.214(1) is met.

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

29. 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

30. 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.

    Penelope Hunter
    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.