Photikhun (Migration)

[2019] AATA 6238

Photikhun (Migration) [2019] AATA 6238 (29 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nattapat Photikhun

CASE NUMBER:  1910269

HOME AFFAIRS REFERENCE(S):          BCC2018/5811380

MEMBER:Meredith Jackson

DATE:29 November 2019

PLACE OF DECISION:  Brisbane

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.500.313 of Schedule 2 to the Regulations.

Statement made on 29 November 2019 at 11:31am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine access to funds – evidence of financial capacity provided –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.313, 500.314

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 8 April 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subsequent Entrant) visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant applied for the visa on 24 December 2018. 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 applicant Mr Nattapat Photikhun, a citizen of Thailand, applied for the visa as a member of the family unit of Ms Thitchanaporn Liengkeawpratum, who is also a citizen of Thailand.

4.     In this case, Ms Liengkeawpratum is a person (the primary person) who holds a student visa, having satisfied the primary critera for that visa.

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.314 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant will have genuine access to funds as required by the Regulations.

6.    The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7.    The applicant was assisted in relation to the review by their registered migration agent, who did not attend the hearing.

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

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 secondary criteria in cl.500.311 to cl.500.318 must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria. The issue in the present case is whether the applicant meets the financial requirement (cl.500.313).

Determinative issue in delegate’s decision

1. The decision appears primarily concerned with whether the applicant meets the financial requirement. However the decision states initially that the delegate is not satisfied that clause 500.314 in schedule 2 of the Migration Regulations is satisfied; and states that this clause provides that:

   “300.314

   The applicant gives to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.”

2. The Tribunal notes that cl.500.314 concerns the evidentiary requirements in relation to arrangements in Australia for health insurance. The delegate makes no further reference to health insurance but states in concluding paragraphs:

   “As the applicant has not provided evidence of their financial capacity as required by subclause 500.314(1) to satisfy the genuine access requirement. Consequently, I am not satisfied that the applicant will have genuine access to funds as required by subclause 500.314(1) and therefore does not meet the requirements of clause 500.314.”

3. The Tribunal accepts that in the decision, the financial requirements may have been incorrectly assigned to cl.500.314(1) and cl.500.314, rather than correctly to cl.500.313.

4. As body of the delegate’s decision is wholly concerned with the applicant’s financial capacity, the Tribunal has addressed the financial requirements on review. The relevant clause requires:

500.313

(1)  The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

(2)  While the applicant holds the visa, sufficient funds will be available to meet:

(a)  the costs and expenses of the applicant during the applicant’s intended stay in Australia; and

(b)  the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.

(3)  If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

Note:    For arrangements for the use of a computer program, see section 495A of the Act.

(4)  The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

Genuine access to funds (cl.500.313)

1. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.313 (3).

2. To calculate the amount required to be shown, the Tribunal has had regard to the requirements for evidence of financial capacity for the primary criteria in cl.500.214(3), which are set out in LIN 19/198 (the Instrument), attached to this decision.

3. The Tribunal notes that the delegate’s decision required that the applicant show a balance of at least AUD 32,885 in an Australian bank account.

4. Prior to the hearing, the applicant provided evidence in the form of a joint bank account held by him and the primary person at the Commonwealth Bank of Australia. A bank statement provided showed a closing balance of AUD 53,038.30 on 4 November 2019.

5. The Tribunal has calculated the funds required to be shown at the time of this decision, based on the applicant’s stated intended stay in Australia from 28 November 2019 until 15 March 2020, to be AUD 10,482.

6. As the funds shown exceed the amount required to be shown and are in an Australian bank account held jointly with the primary person, the Tribunal is satisfied sufficient funds will be available to meet the costs and expenses of the applicant during the applicant’s intended stay in Australia; and that the applicant will have genuine access to the funds.

7. 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

1. 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.500.313 of Schedule 2 to the Regulations.

Meredith Jackson
Member

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

1. 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.

2. 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.

3. 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.

…

1. 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.

1. 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.