Nguyen (Migration)

[2020] AATA 2828

Nguyen (Migration) [2020] AATA 2828 (26 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nhut Duy Nguyen

CASE NUMBER:  1915434

HOME AFFAIRS REFERENCE(S):          BCC2019/1391797

MEMBER:Mark Bishop

DATE:26 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 May 2020 at 10:05am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–   applicant failed to respond to hearing invitation – failed to attend hearing –no evidence provided to show genuine access to the funds – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 379, 362
Migration Regulations 1994, Schedule 2, cls 500.211, 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 27 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 March 2019. 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 (the Regulations) because the applicant failed to provide evidence of Genuine Access to Funds (GAF).

4. The applicant did not appear before the Tribunal.

5. On 11 May 2020 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 26 May 2020. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

6. No response to the hearing invitation was received. However the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. The applicant provided a copy of the decision record to the Tribunal. The date of decision was 27 May 2019.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 GAF.

   Genuine access to funds (cl.500.214)

10. 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.

11. 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?

12. 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.

13. On 27 May 2019 the delegate made a finding the applicant failed to provide adequate evidence of GAF.

14. An applicant is required to provide current information to the Tribunal to satisfy GAF as set out in cl.500.214.

15. On 11 May 2020 the Tribunal wrote to the applicant and invited the applicant to attend a hearing.  The Tribunal advised the applicant “…Please provide all documents you intend to rely on to establish that you meet the criteria for the visa.  The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these and any changes in your circumstances, in providing documents and preparing for the hearing.  Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator”.

16. The Tribunal requested the applicant provide the following documents at least 7 days prior to the hearing:

    1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

    2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

    3.Either:

    ·Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
    
    OR

    ·Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds. Please note: any access to funds information that is from outside of Australia needs to be converted into Australian Dollars (AUD) using the following link: A copy of the conversion needs to be added to any submission with the conversion date.

17. The Tribunal is of the view the applicant was provided with adequate written notice of the need to provide “a copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa” as outlined in paragraph 19 above.

18. In addition on 11 May 2020 the Tribunal provided a copy of LIN 19/198 Financial Capacity Instrument to the applicant. This instrument in s.6 (2) outlines the detail an applicant is required to provide to comply with the instrument and hence satisfy cl.500.214 of Schedule 2 to the Migration Regulations. The Tribunal is of the view the applicant was provided with adequate written notice of the type of information required to be provided to the Tribunal to satisfy LIN 19/198.

19. The applicant did not provide a current COE or other form of proof of enrolment to the Tribunal. Without a current COE or other proof of enrolment (such as a letter of confirmation from an education provider or a receipt for payment of tuition fees) the Tribunal is unable to calculate evidence of financial capacity as outlined in LIN 19/198.

20. The applicant has been aware since 27 May 2019 (date of delegate’s decision) of the requirement to provide proof of GAF. Despite multiple notices of such requirement the applicant has not provided proof of GAF.

21. The Tribunal examined all relevant files (inclusive of Casemate) and notes the applicant did not respond to the hearing invitation of 11 May 2020 and did not provide any documents to the Tribunal.

22. The applicant has not provided any information or documents to the Tribunal that address the requirement of GAF.

23. The applicant did not provide current proof of GAF to the Tribunal. There is no evidence before the Tribunal that the applicant satisfies LIN 19/198 (see paragraph 18 above in addition).

24. On the basis of the above, the Tribunal is not satisfied that the applicant meets cl.500.214(3).

25. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.214.

26. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Mark Bishop
    Member

    
    

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

    6 Subclause 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.

    7 Subclause 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.

    8 Subclass 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.

    …

    10 Evidence 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.

    11 Pro 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.