Ong (Migration)

[2020] AATA 2767

Ong (Migration) [2020] AATA 2767 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shi Ying Ong

CASE NUMBER:  1923096

HOME AFFAIRS REFERENCE(S):          BCC2019/3350845

MEMBER:Andrew George

DATE:17 April 2020

PLACE OF DECISION:  Darwin

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 17 April 2020 at 2:28pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – money deposits from Malaysia – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
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 16 August 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 3 July 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 “At the time of lodgement and assessment of their student application, the applicant did not provide any verifiable [financial] evidence to support their application”.

4. The matter was listed for hearing on 7 April 2020. The applicant filed financial records in response to the hearing invitation. The hearing was subsequently cancelled due to the COVID-19 pandemic. Nevertheless, the Tribunal considers that it has sufficient documentary evidence to proceed to decision without requiring the applicant to attend to give oral evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Genuine access to funds (cl.500.214)

6. 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.

7. 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?

8. 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.

9. The applicant has provided the Tribunal with various bank statements from Citigroup and ANZ showing money deposits. The Tribunal declines to detail this evidence so as to preserve the privacy of the applicant, suffice that the Tribunal is satisfied that as at the date of decision the applicant has over $30,000 in accounts in her name. These funds are largely from money deposits from Malaysia. The applicant is undertaking a practical placement at a child care centre as part of her course; however this does not seem to be paid. Indeed, the applicant does not seem to be currently undertaking any paid work in Australia. The Tribunal concludes from this that she has no financial need to do so.

10. A letter dated 19 March 2020 from Australian Career College indicates that the applicant is performing well in her studies. Associated receipts dated 5 February 2020 and 8 November 2019 indicate that she has paid her course fees.

11. Although the Tribunal does not have before it the particulars of any travel expenses, the only travel expense that the Tribunal considers reasonably applicable in the applicant’s circumstances is her return airfare to Malaysia. The Tribunal is satisfied that the sum held her bank accounts will cover that expense as it is clear that the applicant possesses significantly more than the annual living expenses required by LIN19/198.

12. 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?

13. The Tribunal notes it findings in paragraphs [9]-[10] above. The Tribunal has also reviewed the entries of the applicant’s bank statements. There is nothing to indicate that the sum presently held by the applicant is insufficient to meet her costs and expenses. For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).

    Will the applicant have genuine access to the funds?

14. 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. The Tribunal notes that the Citigroup and ANZ accounts are held in the applicant’s name and is therefore satisfied the applicant will have genuine access to the funds, meaning that cl.500.214(1) is met.

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

16. 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

17. 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.

    Andrew George
    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.

    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.