Revoori (Migration)

[2019] AATA 1804

Revoori (Migration) [2019] AATA 1804 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naresh Reddy Revoori

CASE NUMBER:  1716684

HOME AFFAIRS REFERENCE(S):           BCC2017/1786954

MEMBER:Justin Meyer

DATE:24 April 2019

PLACE OF DECISION:  Melbourne

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 24 April 2019 at 3:09pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Advanced Diploma of Business – financial requirements – evidence of financial capacity provided – course fees – living costs – travel expenses – genuine access to funds – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 20 July 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 19 May 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 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 he was unable to provide evidence of funds.

4. The applicant appeared before the Tribunal on 14 November 2019 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 there is genuine access to funds.

   Genuine access to funds (cl.500.214)

8. 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.

9. 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?

10. 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.

11. The applicant undertook in the hearing to provide evidence.

12. He responded that his parents are supporting him with living expenses and tuition fees. They organised the funds for him in his Australian bank account.

13. He forwarded a bank statement from Commonwealth Bank of Australia under his name showing the current balance of AUD30,023 which is adequate to finish studies.

14. He calculated the following:

    ·Livings expenses = AUD20,290

    ·Return Air fare =AUD1,000

    ·Tuition Fee = AUD7000 out of which AUD1850 has been paid per evidence given earlier to tribunal.

    ·Tuition Fee Balance AUD5200

    ·Total required= AUD26,490

    ·Bank Statement from his father’s account of Mr Thirupathi Reddy

    ·Bank Name: Warangal District cooperative Central bank Ltd

    ·Name: Thirupathi Reddy

    ·Balance: NR 10,93,778.50 which is equivalent to AUD20,264

    ·He stated he required AUD26,490 as per the IMMI in order for him to finish studies and now had in his Australian bank account AUD30,023, a statement of which was enclosed.

15. He added that although the funds in his account is sufficient as proof of evidence, he also attached his father’s overseas bank account statement which has further AUD20,000 additional funds should it be necessary.

    Findings in respect of the criteria in Section 6(2) of IMMI 18/010 Living costs

16. The applicant confirmed that he has no spouse, de facto or dependents therefore his 'Living Costs' are deemed to be $20,290. As his Advanced Diploma of Business at Flinders International College course finishes in November 2019(per his CoE), the applicant's expected stay in Australia will be more than 12 months.

    Annual course fees

17. The term 'annual course fees' is not defined in the legislation however it relates to the course fees for the course of study in which the applicant is enrolled. According to the Offer of Enrolment that was tendered by the applicant at hearing the total cost of the tuition fee is AUD7000 out of which AUD1850 has been paid, evidence of which was given to tribunal. The tuition fee balance is thus AUD5,150.

    Travel expenses

18. This is the 'one way' travel cost of returning from Australia to the applicant's home country upon expiry of his visa. Travel costs for a 'one way' air flight ticket to India vary but are estimated by the applicant as approximately AUD1000 per person. The Tribunal has checked this via an internet search of airline ticket pricing on or about the date of hearing and estimates this at AUD850.

    Total costs

19. In accordance with IMMI 18/010, the Tribunal finds that the applicant's total course fees, living costs and travel costs for the first 12 months are as follows:

    Living costs   AUD20,290

    Annual course fees                AUD5,150

    Travel costs  AUD850

    Total   AUD26,290

20. The applicant is therefore required to give evidence of funds sufficient to meet expenses totaling AUD26,290

    Source of Funds

21. All of the funds required by an applicant to meet their relevant costs and expenses must also satisfy the requirements of Section 10 of the Financial Instrument. This specifies a limited range of evidence of financial capacity which is required, namely: a money deposit with a financial institution, a loan with a financial institution, government loans or scholarship or financial support.

22. According to the evidence tendered, the applicant has a total sum of AUD30,023 held in an Australian bank account in his name. The Tribunal is satisfied that the Commonwealth Bank is an appropriate financial institution for the purposes of the Financial Instrument.

    Are there sufficient funds available to meet costs and expenses while the applicant holds the visa?

23. As set out above the Tribunal has calculated that the funds required for the purposes of the applicant's study and visa is AUD26,290. The Commonwealth Bank account in the name of Mr Naresh Reddy Revoori holds a total sum of AUD30,023 which exceeds the applicant's total costs and expenses of his ongoing study in Australia.

24. Based on the cash currently held in the applicant’s account, the Tribunal finds that the applicant will have sufficient funds available during his stay.

25. Therefore on the basis of the evidence before it the Tribunal is satisfied that the applicant meets cl.500.214(2) and (3).

    Will the applicant have genuine access to the funds?

26. To meet cl.500.214(1), the Tribunal must also be satisfied that the applicant will have genuine access to the funds mentioned above.

27. The Tribunal has reviewed the relevant legislation as well as the relevant provisions in the Department's Procedures Advice Manual (PAM 3). There is no requirement in the legislation, the Financial Instrument or in PAM 3 that the funds have to be held for a certain period in relation to the visa application. The account in question is held in his sole name

28. As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met.

    Conclusion

29. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214 of the Regulations.

30. 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 Sub-class 500 (Student) visa.

    DECISION

31. 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 Sub-class 500 (Student) visa:

    ·cl.500.214 of Schedule 2 to the Regulations.

    Justin Meyer
    Member

    
    

    Attachment – IMMI 18/010 – Financial capacity instrument (extract)

    6Subclass 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 subsection (2), (3), (4), (5) or (6).

    Note: For primary applicant, see section 4 of Part 1 of 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 – AUD20,290 (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 commencing:

    (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,

    and ending on the final day of the applicant’s final course of study.

    (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 - AUD7,100; and

    (B)for a dependent child - AUD3,040; 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 - AUD8000 (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 of 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 AUD60,000; or

    (ii)if there is a secondary applicant  – at least AUD70,000.

    (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.

    7Subclass 500 (Student) visa – secondary applicants 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 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 AUD70,000.

    (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.

    8Subclass 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 AUD70,000.

    (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.

    …

    10Evidence 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.

    11Pro 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.