Kumar (Migration)

[2024] AATA 3095

Kumar (Migration) [2024] AATA 3095 (6 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gourav Kumar

REPRESENTATIVE:  Mrs Shanti Shanti (MARN: 2217806)

CASE NUMBER:  2314590

HOME AFFAIRS REFERENCE(S):          BCC2023/3959558

MEMBER:Wendy Banfield

DATE:6 August 2024

PLACE OF DECISION:  Canberra

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 06 August 2024 at 3:53pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –applicant provided evidence of financial capacity – adequate evidence of genuine access to funds provided – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 65, 360

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 6 September 2023 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 11 July 2023. 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 they were not satisfied the applicant had demonstrated genuine access to funds as required to meet the financial capacity requirement of the Regulations.

4. The applicant was assisted in relation to the review. As the applicant provided written evidence as requested, the Tribunal did not consider it necessary to schedule a hearing in the matter.

5. On 15 July 2024 the Tribunal wrote to the applicant inviting him to provide evidence of current enrolment, proof of payment of any fee and evidence to demonstrate genuine access to sufficient funds to meet the financial requirements of the Regulations. On 22 July 2024 the Tribunal received the applicant’s response attaching documents in support of his application for review.

   ·Applicant’s Indian passport biometric information.

   ·Indian education document.

   ·Overseas student health cover from 06/07/2023 to 22/02/2025.

   ·Department of Home Affairs (the Department) notification and decision record dated 6 September 2023.

   ·Confirmation of Enrolment (COE) for General English from 10/07/2023 to 22/12/2024.

   ·Invoice from Stellar College showing an amount of $10,425.00 paid for Tuition Fees, General English, with no balance due.

   ·Statutory declaration and written statements by the applicant.

   ·Affidavits and identity cards of the applicant’s parents Bablesh Kumari and Surinda Kumar and brother Arvind Kumar.

   ·Bank statements in the name of Bablesh Kumari, Surinda Kumar and Arvind Kumar.

   ·Money conversion information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 provided evidence of sufficient funds to meet his costs and expenses while holding the visa and whether he has genuine access to those funds.

8. 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.

9. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl 500.214(3).

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

10. 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.

11. To demonstrate genuine access to sufficient funds while holding the visa, the applicant is required to show access to funds comprising 12 months of living expenses, the first 12 months of course fees and travel expenses.

12. As of the date of this decision, the evidence indicates the fees for the applicant’s General English course have been paid. The applicant is enrolled until 22 December 2024, a period of 139 days from the date of decision. Therefore, the applicant is required to demonstrate access to $8,031.00 in living expenses and $1,000.00 for travel expenses totalling $9,031.00.

13. The applicant provided evidence in the form of money deposits with financial institutions. This consisted of documentary evidence to demonstrate that his mother and father hold funds with Canara Bank in the amount of INR 799,400.21, and Punjab National Bank in the amounts of INR 303,317.16 and INR 23,084.94. The applicant provided a bank statement from The Commercial Bank in Qatar in the name of Arvind Kumar, the applicant’s brother with a closing balance of QAR 56,602.23.

14. The total amount of funds held by the applicant’s parents as of the date of decision is equivalent to $20,604.74. The funds held by the applicant’s brother are equivalent to $23,843.84. Therefore, the Tribunal is satisfied the applicant has provided evidence of financial capacity in accordance with the instrument.

15. 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?

16. The applicant is required to demonstrate access to $9,031.00 in remaining living expenses and travel costs. Therefore, the funds held by the applicant’s parents and brother are sufficient to cover the amount required by the applicant to cover his costs and expenses while he holds the visa.

17. For these reasons, the Tribunal is satisfied that the applicant meets cl 500.214(2).

    Will the applicant have genuine access to the funds?

18. 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.

19. The Tribunal is satisfied the Bablesh Kumari and Surinda Kumar are the parents of the applicant, as listed on his Student Visa Application form. The identity documents of the applicant’s brother Arvind Kumar indicates he has the same father as the applicant.

20. Therefore, the Tribunal is satisfied the applicant will have genuine access to the funds and cl 500.214(1) is met.

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

22. 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

23. 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.

    Wendy Banfield
    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.

    …

    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.