Sajjad (Migration)

[2024] AATA 1073

Sajjad (Migration) [2024] AATA 1073 (30 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Asma Sajjad

CASE NUMBER:  2313908

HOME AFFAIRS REFERENCE(S):          BCC2023/3699262

MEMBER:Wendy Banfield

DATE:30 April 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 590 visa:

·cl 590.216 of Schedule 2 to the Regulations

Statement made on 30 April 2024 at 2:03pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 590 (Guardian) – financial capacity – genuine access to funds – access to available funds in accounts of family member – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 590.211, 590.216

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 to refuse to grant the applicant a Student (Temporary) (Class TU) Student Guardian visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 29 June 2023. The delegate refused to grant the visa on 30 August 2023.

2. The delegate made the decision on the basis that sufficient evidence of financial capacity as specified in cl.590.216 Migration Regulations 1994 (Cth) (the Regulations) was not provided as required to satisfy a criterion for the grant of a Student Guardian visa.

3. Clause 590.216 provides:

   
   
   

   590.216

   (1) The applicant will have genuine access to:

   (a) funds of a kind mentioned in subclause (2); and

   (b) funds that evidence financial capacity, as mentioned in 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; and

   (c) unless the applicant meets the requirements of subclause 590.211(4), the costs and
   expenses of each nominating student.

   (3) The applicant gives to the Minister evidence of financial capacity that satisfies the requirements
   specified in an instrument under subclause (4).

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

4. The applicant appeared before the Tribunal on 30 April 2024 to give evidence and present arguments.

5. Prior to the hearing the Tribunal received Westpac Bank statements in the name of Syed Ali with a balance of $183,156.17 as of 29 February 2024. Syed Ali is the adult son of Asma Sajjad the student guardian in this case, and the sister of Anusha Sajjad, the student. The Tribunal notes it appears the Department delegate calculated the required funds incorrectly and the applicant did demonstrate evidence of sufficient funds, as claimed. At the hearing the Tribunal questioned Syed Ali about the source of the funds in his account. He explained his income is from his retail and restaurant businesses. It was also submitted Syed Ali is married with no children and his wife is employed in a bank. Mr Ali declared he has sufficient income to support his family, including his mother and sister while they are in Australia. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 590 visa:

   ·cl 590.216 of Schedule 2 to the Regulations

   Wendy Banfield
   Member