Mohammed (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 500 (Student) visa, where the primary issue was whether the applicant had demonstrated genuine access to funds (GAF) as required by clause 500.214 of Schedule 2 to the Regulations. The Minister had required the applicant to provide evidence of financial capacity in accordance with clause 500.214(3), and the delegate had found that the applicant failed to provide sufficient evidence to satisfy this criterion. The Tribunal was required to make a finding at the time of its decision, meaning current information was necessary.

The legal issues before the Tribunal were whether the applicant had satisfied the GAF requirements under clause 500.214(2) and (3) of the Regulations, and whether the applicant had provided sufficient evidence of financial capacity as stipulated by the instrument LIN 19/198. This included demonstrating that sufficient funds would be available to meet the costs and expenses of the applicant and any family members during their intended stay in Australia, and that the applicant had genuine access to these funds. The Tribunal also considered the secondary criteria for family members under clause 500.311.

The Tribunal noted that the applicant had failed to comply with a request to provide all documents intended to be relied upon to establish GAF, instead submitting a GTE submission that addressed prior visa refusals and personal circumstances. The documentation provided by the applicant, including a statutory declaration, psychological report, medical certificates, and course enrolment details, did not adequately address the financial capacity requirements. The Tribunal concluded that the applicant had not provided current information to satisfy the GAF criteria at the time of the decision.

Consequently, the Tribunal remitted the applications for Subclass 500 (Student) visas for reconsideration. The remittal was directed with the specific instruction that the first applicant and other named secondary applicants must meet the criteria under clause 500.214 (financial capacity) and clause 500.311 (secondary criteria for family members) of Schedule 2 to the Regulations.