Vu (Migration)
[2020] AATA 3146
•20 June 2020
Vu (Migration) [2020] AATA 3146 (20 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Minh Khoa Vu
CASE NUMBER: 1814644
HOME AFFAIRS REFERENCE(S): BCC2018/1217448
MEMBER:David Thompson
DATE:20 June 2020
PLACE OF DECISION: Perth
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 20 June 2020 at 7:24pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – access to available funds in mother’s account – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.214STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 May 2018 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 14 March 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.
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 she did not provide documentation evidencing financial capacity in support of his application.
The applicant appeared before the Tribunal on 5 February 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 meets the requirements of cl.500.214.
Genuine access to funds (cl.500.214)
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.
In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3).
The applicant has provided the Tribunal with a number of documents as evidence in support of his application. The Tribunal has considered all of them, but will not list them as they are not all relevant to the issues before the Tribunal in this case. Rather, the Tribunal will refer to them and identify them in the course of the discussion below. The Tribunal has also considered the contents of the Departmental file in this matter, as well as the applicant’s oral evidence, given at hearing.
Has the applicant provided evidence of financial capacity in accordance with the instrument?
The requirements for evidence of financial capacity for cl.500.214(3) are set out in LIN 19/198 (the Instrument), which is attached to this decision.
The applicant has applied for a subclass 500 student visa as a primary applicant, and has no dependents. The provisions of the Instrument that apply to him are, therefore, the provisions of s.6. Of those provisions and on the evidence before the Tribunal, only sub-ss.6(2) and 6(3) could have any possible application.
Section 6(2) of the Instrument requires an applicant to provide evidence of financial capacity, in the form specified in s.10, that demonstrates that he or she has sufficient funds available to meet his or her living costs and expenses, course fees, and travel expenses, and those of his or her dependents (if any), to a given level. The precise amount required depends on the length of time the visa applicant intends to stay in Australia, the fees charged by the applicant’s course provider for his or her course, the length of the course, and the applicant’s and any dependent’s travel requirements. Section 10 requires that evidence to take the form of evidence of a money deposit with a financial institution, a loan with a financial institution, government loans, or a scholarship or financial support.
Section 6(3) of the Instrument, which may apply as an alternative to s.6(2), requires an applicant to provide evidence of financial capacity in the form of official government documentation of personal income issued in the 12 months immediately before the visa application is made demonstrating that the applicant’s parent, spouse or de facto partner has a personal annual income of (as relevant) at least AUD62,222 in the 12 months immediately before the visa application is made. It should be noted that the applicant has provided some evidence potentially relevant to s.6(3), in the form of evidence of his parents’ separate incomes. However, for reasons that will become apparent, it is unnecessary to consider that evidence as the issue of whether he meets the requirements of cl.500.214(3) can be determined entirely by reference to s.6(2).
The applicant is currently enrolled in a Diploma of Leadership and Management, which is due to finish on 20 November 2020, and is not enrolled in any further course. He therefore proposes to stay in Australia for a period of less than 12 months, and it is necessary to calculate the pro rata equivalent of the annual living costs figure provided the Instrument (AUD21,041) in the manner specified in s.11 of the Instrument. The Tribunal has calculated that figure at AUD8,878.
The applicant will need to travel to his home country at the end of his course. The Tribunal allows the sum of AUD 1,000 for the applicant’s costs of that journey. There is no evidence before the Tribunal that he will need to make any other journeys before he completes his studies in Australia.
As to course fees, the Instrument requires calculation of fees payable for the applicant’s ‘period of study.’ In a case where the applicant’s first course of study commences after the date of his or her visa application, the period of study starts on the first day of that course. If the applicant is already studying at the date of his or her visa application, the period of study is taken to commence on the date of the application: s.6(2)(b)(iii). In this case the applicant’s visa application was made on 14 March 2018. The evidence before the Tribunal shows that at that date the applicant was enrolled in a Certificate III in Business, and had a future enrolment for a Diploma of Leadership and Management (the course he is currently studying). On that basis, the Tribunal finds that the applicant’s period of study for the purposes of the Instrument started on 14 March 2018 and will end on 20 November 2020. As the duration of the applicant’s period of study is greater than 12 months, his course fees for the first 12 months of his period of study, minus any amount already paid, must form part of the amount to be calculated for the purposes of s.6(2).
The applicant has provided the Tribunal with evidence, in the form of receipts for payment of course fees. The Tribunal has also obtained information regarding payments towards course fees from the applicant’s records in the Provider Registration and International Student Management System (PRISMS). That information is ultimately derived from the applicant’s course providers themselves, and as such may be considered as reliable evidence. The information from both those sources of evidence matches, and shows that the applicant has paid all of his course fees in respect of the first 12 months of his period of study. The Tribunal need not, therefore, include any amount for course fees in calculating the amount of funding the applicant must demonstrate for the purposes of s.6(2) of the Instrument.
On the basis of the matters set out in paragraphs 14 to 17 above, the Tribunal calculates that in order to meet the requirements of s.6(2) of the Instrument, the applicant must demonstrate access to funds in the amount of AUD9,878.
In order to establish that financial capacity for the purposes of cl.500.214(3), the applicant has provided the following relevant documentary evidence to the Tribunal:
a.a copy of an account statement issued by HDBank of Ho Chih Minh City showing a balance of VND1,000,000,000 held in the name of Cao Thih Ngoc Dung as at 17 January 2020;
b.a letter from Ms Cao Thih Ngoc Dung dated 5 February 2020 identifying herself as the applicant’s mother and stating that the funds held in her savings account are available to her son, the applicant, for the purposes of his studies in Australia; and
c.a copy of the applicant’s own Commonwealth Bank of Australia account stated showing a balance of AUD3,240.71 at 30 December 2019.
Financial capacity for the purpose of s.6(2) of the Instrument must be established using evidence meeting the requirements of s.10. One of the acceptable forms of evidence identified in s.10 is evidence of a “money deposit with a financial institution.” The Tribunal is satisfied that the Commonwealth Bank of Australia is a financial institution within the meaning of s.10. The Tribunal has considered information publicly available regarding HDBank and is satisfied both that the Bank itself falls within the scope of the term ‘financial institution’ as used in the Instrument, and that the account statement referred to above counts as evidence of a “money deposit with a financial institution” for the purposes of s.10 The Tribunal is also satisfied that the evidence noted above establishes that the funds in question are available to the applicant to meet his relevant costs and expenses.
At rates of exchange current at the time of this decision, the balance held in Ms Cao Thih Ngoc Dung’s HDBank account is equivalent to approximately AUD63,006. That sum, taken with or without the amount held in the applicant’s own Commonwealth Bank account, is more than sufficient to cover the sum calculated above for the purposes of s.6(2) of the Instrument, being AUD9,878.
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?
The applicant has given evidence as to his actual living costs and expenses for his time in Australia. Without giving the breakdown of those costs, on his evidence they amount to AUD1,280 per month, or approximately AUD42.08 per day. The Tribunal has considered the component parts of that figure, and finds that this is a reasonable account of the applicant’s actual costs and expenses.
The applicant is required to satisfy the Tribunal that the funds available to him will cover his costs and expenses whilst he holds the visa for which he has applied. As the applicant has no student visa as yet, the Tribunal cannot state its expiry date. Nor can it state the date upon which it will be granted. For the purposes of this decision, the Tribunal assumes that if a student visa is ultimately issued to the applicant, it will commence on the date of this decision and will expire on the date upon which he is due to finish his studies. On that basis, the Tribunal assumes for the purposes of this decision that the applicant’s student visa will expire on 20 November 2020. That is a period of 154 days. On the evidence the applicant has given, his living costs and expenses for that period will amount to approximately AUD6,480.32. To that must be added the cost of his journey to his home country at the end of his studies, for which the Tribunal again allocates $1,000. Any course fee that the applicant has yet to pay must also be added.
The Tribunal has before it a copy of the applicant’s Confirmation of Enrolment B244A655, which relates to his current course. The Tribunal also has before it the evidence mentioned at paragraph 17 above in relation to that enrolment. On the basis of that evidence, the Tribunal finds that the applicant has yet to pay the amount of AUD3,000 in course fees.
The total amount the applicant must demonstrate that he has available for the purposes of cl.500.214(2) is, therefore, AUD10,480.32.
The applicant relies on his own funds and the funds made available to by his mother, as discussed in paragraph 20 above. Those funds exceed AUD10,480.32 by a considerable amount.
The applicant has also given evidence that he is working whilst in Australia. His bank statement shows regular credits from his employer, Chung Tung Investments Pty Ltd trading as Ellegant Nails, in the amount of AUD391 per week. This offers the Tribunal additional comfort that the applicant has sufficient funds to meet his costs and expenses whilst he holds the visa for which he has applied.
For these reasons, the Tribunal is satisfied that the applicant meets cl.500.214(2).
Will the applicant have genuine access to the funds?
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.
There can be no doubt that the applicant has genuine access to his own funds and earnings. However, he primarily relies on the funds made available to him by his mother. His mother has confirmed in writing that the funds in question are available to the applicant – see the document noted in paragraph 19(b) above. The Tribunal has no difficulty with the proposition that a mother would be prepared to fund her son’s studies in Australia, and accepts that evidence. The Tribunal is satisfied that the applicant has genuine access to those funds.
As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met.
Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214.
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
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.
David Thompson
MemberAttachment – LIN 19/198 – Financial capacity instrument (extract)
6 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.
7 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.
8 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.
…
10 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.
11 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.
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