Lokiny (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a delegate's decision to refuse a Subclass 500 (Student) visa. The applicant sought to demonstrate financial capacity, a requirement for the visa under clause 500.214 of Schedule 2 to the Migration Regulations 1994, as further detailed in the financial capacity instrument LIN 19/198. The delegate had found that the applicant failed to provide adequate evidence of genuine access to funds (GAF).

The primary legal issue before the Tribunal was whether the applicant had provided sufficient evidence of financial capacity, specifically genuine access to funds, at the time of the Tribunal's decision. This required the Tribunal to conduct a de novo review and assess the applicant's circumstances as they stood at the time of the hearing, considering current information and any changes since the initial departmental decision. The Tribunal was also required to consider the specific documentary requirements outlined in LIN 19/198 for demonstrating financial capacity, including evidence of travel expenses, living costs, and course fees.

The Tribunal noted that the applicant had provided a Confirmation of Enrolment (COE) which indicated partial payment of tuition fees. However, the delegate had previously found a failure to provide adequate evidence of GAF. The Tribunal invited the applicant to provide all documents intended to be relied upon to establish that the visa criteria were met, including a current COE and documents relating to past studies. The Tribunal's decision indicates that the applicant's evidence regarding financial capacity was not sufficiently established at the time of review.

Consequently, the Tribunal remitted the application for the Subclass 500 (Student) visa to the Minister for reconsideration. The remittal was accompanied by a direction that the applicant and any secondary applicant must meet the criteria set out in clause 500.214 and clause 500.311 of Schedule 2 to the Regulations.