Sukhpreet Singh (Migration)

[2024] AATA 4050

Sukhpreet Singh (Migration) [2024] AATA 4050 (4 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhpreet Singh

REPRESENTATIVE:  Mrs Chaman Preet Tiwari (MARN: 1681874)

CASE NUMBER:  2315513

HOME AFFAIRS REFERENCE(S):          BCC2023/4411528

MEMBER:Wendy Banfield

DATE:4 October 2024

PLACE OF DECISION:  Canberra

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 04 October 2024 at 5:14pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant has provided evidence of financial capacity in accordance with the instrument – Tribunal is satisfied the applicant will have genuine access to the funds – 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 22 September 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 August 2023. 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 (Cth) (the Regulations) because they did not demonstrate that while they hold the visa, sufficient funds will be available to meet costs and expenses during the intended stay in Australia.

4. On 15 July 2024 the Tribunal wrote to the applicant requesting they provide the following information:

   A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl. 500.211(a) for the grant of the visa.

   Proof of payment of any fee you have already paid for your current course of study and any courses studied since the date of application.

   Evidence that you have genuine access to:

   a. Sufficient funds in the form specified in LIN 19/198 to cover the relevant amount of:

   i.  course fees (minus any already paid),

   ii.  living costs for yourself and each family member who will be in Australia,

   iii. travel costs for yourself and each family member who will be in Australia, and

   iv. school fees for family members who are a child of school age.

   OR

   b. Personal annual income of your spouse/de facto partner or parents of at least the amount specified in LIN 19/198 and in the form specified in LIN 19/198.

   Alternatively, the following evidence:

   a. Your completed AASES form; or
   b. If you are a Foreign Affairs student – a letter of support from the Department of
      Foreign Affairs and Trade; or
   c. If you are a Defence student – a letter of support from the Department of Defence.

5. On 22 July 2024 the applicant submitted the following evidence:

   ·COE for a Certificate III in Commercial Cookery from 07/08/2023 to 04/08/2024

   ·COE for a Certificate IV in Commercial Cookery from 05/08/2024 to 02/02/2025

   ·COE for a Diploma of Hospitality Management from 03/02/2025 to 20/07/2025.

   ·Affidavit of Support from Balvir Singh dated 20 July 2024.

   ·Letter from Punjab & Sind Bank dated 18 July 2024 certifying a loan and funds held by Balvir Singh.

   ·Bank statements from Punjab & Sind Bank dated 18 July 2024.

   ·Indian identity documents in the name of Balvir Singh.

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 the applicant satisfies the financial criteria for the grant of a student visa.

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 LIN 19/198, which is attached to this decision.

11. To demonstrate genuine access to sufficient funds while holding the visa, the applicant is required to show access to funds comprising 12 months of living expenses, the first 12 months of course fees and travel expenses.

12. As of the date of this decision, the evidence indicates the applicant has been and is currently enrolled in a Certificate III in Commercial Cookery from 07/08/2023 to 04/08/2024, a Certificate IV in Commercial Cookery from 05/08/2024 to 02/02/2025 and a Diploma of Hospitality Management from 03/02/2025 to 20/07/2025. The applicant’s first course of study, at the time he applied for the visa was the Certificate III in Commercial Cookery which has since been completed. Therefore, the first 12 months of study has now passed, and the Certificate III completed. The applicant is required to demonstrate access to funds for his living costs and expenses and his travel costs for the next 12 months. This amounts to $21,041.00 in living costs and expenses and $1,000.00 in travel costs, a total of $22,041.00.

13. The applicant provided a Bank of Melbourne letter in his own name indicating an available balance of $10,148.00. He also submitted a financial support statement by Balvir Singh, his father, and statements from Punjab & Sind Bank that declare a credit total equivalent to $34,172.47.

14. As the funds required are money deposits with a financial institution in the applicant’s own name, and the name of a parent, the Tribunal is satisfied they are in the form required by the regulations. The amount of funds held exceeds the amount the applicant is required to have access to; therefore, the Tribunal is satisfied on the evidence that the applicant has provided evidence of financial capacity in accordance with the instrument.

15. 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?

16. The applicant is required provide evidence of access to funds in the amount of $22,041.00 which comprises his living costs and expenses for the next 12 months and his travel expenses to return to his home country. He has provided evidence of sufficient funds in his name in the amount of $10,148.00 and declared access to funds held by his father in the amount of $34,172.47.

17. For these reasons, the Tribunal is satisfied that the applicant meets cl 500.214(2).

    Will the applicant have genuine access to the funds?

18. 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.

19. The funds are held in an Australia Bank account in the name of the applicant and an overseas bank account in the name of a parent; therefore, the Tribunal accepts he will be able to access the money if required.

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

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

22. 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

23. 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.

    Wendy Banfield
    Member

    
    

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

    6Subclause 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.

    7Subclause 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.

    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 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.

    …

    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.