Nguyen (Migration)

[2019] AATA 1205

Nguyen (Migration) [2019] AATA 1205 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hoang Thuy Duyen Nguyen

CASE NUMBER:  1719380

HOME AFFAIRS REFERENCE(S):           BCC2017/1030050

MEMBERs:Stephen Conwell (Presiding)
Amanda Pearson

DATE:18 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas 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 18 March 2019 at 10:37am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – evidence of mother’s bank deposit provided – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
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 Immigration and Border Protection on 9 August 2017 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 15 March 2017. 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 visas 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 had not provided evidence to satisfy the delegate that she had sufficient funds to meet the costs and expenses during her intended stay in Australia.

4. The applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by her registered migration agent.

6. At hearing the Tribunal agreed to the applicant’s request for further time to present further evidence and make submissions.  The Tribunal granted an extension of time to 5.00pm, 12 March 2019. On 13 March 2019 the Tribunal received further evidence and submissions from the applicant’s representative. In the circumstances the Tribunal is prepared to accept the further evidence and submissions for the purposes of this merits review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 genuine access to funds to satisfy cl.500.214.

   Enrolment

9. Clause 500.211 of Schedule 2 of the Regulations relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

10. On the evidence before it the Tribunal is satisfied that the applicant is currently enrolled in a combined packaged course comprised of an Advanced Diploma of Business, commencing on 22 April 2019 and scheduled to finish on 13 March 2020 and a Bachelor of Business degree which will commence on 16 March 2020 and is scheduled to finish on 31 December 2021.

    Financial Capacity

11. 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.

12. 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?

13. The requirements for evidence of financial capacity for cl.500.214(3) are set out in IMMI 18/010, which is attached to this decision.

14. The applicant’s further submissions of 13 March 2019 provide updated calculations in respect of the applicant’s current enrolment.

15. On the basis of the evidence provided the Tribunal calculates the applicant needs to show access to $29,290 being course fees of $8,000, annual living costs of $20,290 and travel costs of $1,000. 

16. The applicant provided evidence of a bank deposit held in the name of her mother, Hoang Thi Thanh. This document is in both English and Vietnamese and declares a monetary balance of VND 2 billion, which is approximately equivalent to AUD$121,662 at the time of this decision.

17. On the basis of the above, the Tribunal is satisfied that the applicant meets cl.500.214(3).

18. From the evidence provided the Tribunal is satisfied the applicant will have genuine access to the funds meaning that cl.500.214(1) is met.

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

20. 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

21. 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.

    Stephen Conwell
    Member

    
    

    Amanda Pearson
    Member