Taranjit Singh (Migration) - [2021] AATA 358

Taranjit Singh (Migration) [2021] AATA 358 (4 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Taranjit Singh
CASE NUMBER:  2011886
DIBP REFERENCE(S):  BCC2015/822458
MEMBER:Vanessa Plain
DATE:4 February 2021
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 573 Higher Education Sector visa:
·cl.573.223(2) to the Regulations.

Statement made on 04 February 2021 at 11:21am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – genuine access to funds – evidence of financial capacity – bank statement and tuition payment receipt provided to tribunal – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cl 5A408, Schedule 2, cl 573.223(2)
CASE
Singh v Minister for Immigration [2002] FCCA 1583
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 December 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 March 2015. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of the financial requirements for the visa under cl 5A408 of the Migration Regulations 1994 (Cth). The visa was refused because the applicant did not provide the evidence required to demonstrate that they met the financial requirements in cl 5A408 of the Regulations and on that basis, the applicant did not satisfy cl 573.223(2) as required.
By Order of the Federal Circuit Court of Australia (FCCA) made on 17 June 2020, this matter was remitted to the Tribunal for reconsideration. The FCCA concluded that the original decision of the Tribunal was tainted by apprehended bias and on that basis, issued writs of certiorari and mandamus directed to the Tribunal. The reasons for judgment are set out in Singh v Minister for Immigration & Anor [2020] FCCA 1583.
The applicant appeared before the Tribunal on 4 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his lawyer and registered migration agent.
For the following reasons, the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 358
Decision Date: 4 February 2021

CaseChat Overview and Summary

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), made by Taranjit Singh. The Federal Circuit Court had previously remitted the matter to the Tribunal. The central dispute revolved around whether the applicant had demonstrated genuine access to sufficient funds to meet the financial requirements for the visa, as stipulated by the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had satisfied the financial capacity requirements under clause 5A408 of the Migration Regulations 1994. This clause mandates evidence of sufficient funds from an acceptable source to cover course fees, living costs, and school costs for the first 12 months of the proposed stay, as well as a declaration of access to funds for the remainder of the stay, and evidence of sufficient funds for travel costs. The Tribunal also considered the provisions of clause 573.223, which outlines the criteria for a genuine applicant for entry and stay as a student, including the requirement to meet financial capacity obligations.

The Tribunal concluded that the applicant's current enrolment in a different course of study rendered the original issues before it no longer relevant. Consequently, the Tribunal remitted the application for reconsideration. The direction given was that the applicant meets the criteria under clause 573.223(2) of the Regulations, indicating that the matter should be re-evaluated with this finding in mind.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues before the Tribunal and the FCCA are, at the time of this decision, no longer relevant, because the applicant is currently enrolled in a different course of study to that in which he was enrolled at the time of first hearing before the Tribunal. The applicant provided a confirmation of enrolment in a Master of Professional Accounting which provides that the applicant’s course is scheduled to conclude on 4 December 2022. In the present case, the applicant must satisfy the financial requirements for the visa under cl.5A408of the Migration Regulations 1994 (Cth) (‘the Regulations’). That clause provides as follows:5A408 Financial capacity (1) The applicant must give, in accordance with this clause:(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 12months:(i) course fees; (ii) living costs;(iii) school costs; and(aa) a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 12 months; and(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.(1A) If the applicant is:(a) fully funded; or(b) (b) an applicant:(i)who is not funded, wholly or partly, by:(A) the Commonwealth Government, or the government of a State or Territory; or(B) the government of a foreign country; or(C) a multilateral agency; and(ii)who proposes to undertake a course of study that is, or courses of study that are together, of a duration of less than 12 months; and(iii)(iii)for whom, if applying in Australia, the proposed period of stay will result in the applicant’s total period of lawful stay in Australia being less than 12 months; or(c) the subject of an arrangement by which the course fees, living costs and travel costs for the primary person’s full period, assessed for the primary person alone, will be met by:(i)a provincial or state government in a foreign country, with the written support of the government of that country; or(ii)(ii) an organisation specified in a legislative instrument made by the Minister for this paragraph;the applicant must give evidence that the applicant has access to funds that are sufficient to support each member of the applicant’s family unit who is not a family applicant.(2) In this clause:financial support, from an applicant’s proposed education provider, means:(a)a scholarship that:(i)is awarded on the basis of merit and an open selection process; and(ii)is awarded to a student who is enrolled in a course leading to a Certificate IV qualification or a higher qualification; and(iii)(iii) is awarded to the greater of:(A) not more than 10% of overseas students in a course intake; and(B) not more than 3 overseas students in a course intake; or(b)a waiver of the applicant’s course fees carried out in the following circumstances:(i)the applicant is part of an exchange program that involves:(A) a formal agreement between an education provider and an education institution in a foreign country; and(B) the reciprocal waiver of course fees as part of that agreement;(ii)the applicant proposes to study full-time;(iii)the applicant’s proposed studies will be credited to a course undertaken by the applicant in the applicant’s home country.funds from an acceptable source means one or more of the following:(a)if the applicant:(i)has successfully completed at least 75% of the requirements for his or her principal course; and(ii)has applied for the visa in order to complete the course; and(iii)does not propose to undertake any further course;a money deposit held by an acceptable individual;(aa) if paragraph (a) does not apply—a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;(b)a loan from a financial institution made to, and held in the name of, an acceptable individual;(c)a loan from the government of the applicant’s home country;(d)financial support from:(i)the applicant’s proposed education provider; or(ii)the Commonwealth Government, or the government of a State or Territory; or(iii)the government of a foreign country; or (iv)(iv) a corporation that:(A) conducts commercial activities outside the country in which it is based; and(B) employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or(v)a multilateral agency; or(vi)a provincial or state government in a foreign country, provided with the written support of the government of that country; or(vii)an organisation specified by the Minister in an instrument in writing for this subparagraph; or(viii)an acceptable non-profit organisation.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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 573 Higher Education Sector visa:·cl.573.223(2) to the Regulations.Vanessa PlainMemberATTACHMENT – Extracts from the Migration Regulations 1994573.223(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:(i)the applicant’s circumstances; and(ii)the applicant’s immigration history; and(iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and(iv)any other relevant matter; and(b)the applicant meets the requirements of subclause (1A) or (2).(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:(a)the applicant gives the Minister evidence that the applicant has:(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and(ii)educational qualifications required by the eligible education provider; and(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and(ii)any other relevant matter; and(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.(2)If subclause 573.223(1A) does not apply:(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and(ii)any other relevant matter; and(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Ratio Decidendi

Legal Principle Established

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 573 Higher Education Sector visa:·cl.573.223(2) to the Regulations.Vanessa PlainMemberATTACHMENT – Extracts from the Migration Regulations 1994573.223(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:(i)the applicant’s circumstances; and(ii)the applicant’s immigration history; and(iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and(iv)any other relevant matter; and(b)the applicant meets the requirements of subclause (1A) or (2).(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:(a)the applicant gives the Minister evidence that the applicant has:(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and(ii)educational qualifications required by the eligible education provider; and(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and(ii)any other relevant matter; and(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.(2)If subclause 573.223(1A) does not apply:(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and(ii)any other relevant matter; and(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.