Giri (Migration) [2020] AATA 4362 (20 August 2020)

Last Updated: 3 November 2020

Giri (Migration) [2020] AATA 4362 (20 August 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Miss Usha Giri

CASE NUMBER: 1806317

HOME AFFAIRS REFERENCE(S): BCC2017/4938035

MEMBER: Andrew George

DATE: 20 August 2020

PLACE OF DECISION: Darwin

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 August 2020 at 5:46pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – financial capacity – genuine access to funds – financial sponsorship declaration by the applicant’s father – wages from Australian employment – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.214

CASES

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

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 27 February 2018 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 23 December 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). Materially, the delegate found:

At the time of lodgement and assessment of their student application, the applicant did not provide any verifiable evidence to support their application. Therefore, I am not satisfied that the applicant has provided evidence of sufficient funds to meet their travel expenses, living costs and annual course fees.

4. The applicant appeared by telephone before the Tribunal on 6 August 2020 to give evidence and present arguments. The applicant was represented by Mr Patel of Aussizz Migration and Education Consultants Pty Ltd.
5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.
7. The applicant filed a series of documents on 22 June 2020 that she sought to rely upon in support of her application. This included a statement dated 10 June 2020. It also included an Overseas Student Confirmation-of-Enrolment certifying that the applicant was enrolled in an Advanced Diploma of Community Sector Management that ends on 17 August 2021.
8. The applicant’s oral evidence was that she intends to return home to Nepal at the completion of her course. The Tribunal has nothing objective before it to indicate that the applicant’s oral evidence is to be disbelieved in this regard. The applicant did not give a precise date that she intends to return to Nepal, which is reasonable with such a lengthy timeframe. Accordingly, and on the best evidence before it, the Tribunal is satisfied that the applicant intends to return to Nepal in 12 months from the date of this decision.

Genuine access to funds (cl.500.214)

9. 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.
10. In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3).
11. In her statement of 10 June 2020, the applicant’s evidence is that she has genuine access to the following funds:
    1. $32,464.90 in the MEGA Bank Nepal Limited account of applicant’s father, Mr Radha Krishna Giri, as evidenced by a letter dated 27 May 2020. Access to these funds is purportedly granted through a financial sponsorship declaration dated 9 June 2020.
    2. $6,000.32 in the applicant’s own personal bank account, as evidenced by a letter dated 10 June 2020.
    100. Earnings of approximately $21,882 per annum as an Aged Care Worker, as evidenced by pay slips.

Has the applicant provided evidence of financial capacity in accordance with the instrument?

12. 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. The Tribunal accepts evidence outlined in paragraphs 12(a)-(b) above as evidence of financial capacity in accordance with s.10(a) of LIN 19/198. The evidence outlined in paragraph 12(c) above is not acceptable for the purposes of s.10 of LIN19/198.
13. Upon consideration of the acceptable evidence, the Tribunal is satisfied that the applicant has provided evidence of financial capacity in accordance with the instrument of $38,465.22. The Tribunal notes that this is consistent with the applicant’s evidence that this sum is the “Total money available for me to utilize for my education and living expenses”. Accordingly, 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?

14. The Tribunal notes its findings in paragraph [8] above, being that the applicant intends to return to Nepal in 12 months from the date of this decision. As such, and in accordance with s.6(2)(b)(ii)(A) of LIN19/198, the applicant must have sufficient funds for annual living costs of $21,041. Additionally, the Tribunal notes that the applicant’s course costs total $9,000 of which there is documentary evidence of only $500 having been paid, leaving a balance of $8,500. This is a sum of $29,541.
15. Travel expenses are difficult to estimated during a global pandemic, but it seems unlikely that a one-way fare from Australia to Nepal will cost more than $5,000. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.214(2).

Will the applicant have genuine access to the funds?

16. 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.
17. The Tribunal has a concern regarding the financial sponsorship declaration by the applicant’s father dated 9 June 2020. There is no objective evidence before the Tribunal that the applicant’s father has in fact transferred funds to her, despite the applicant’s oral evidence that this has occurred. It is open to the Tribunal to find that this is a bogus document submitted for the purpose of encouraging the Department to believe that financial support is available where none has been forthcoming.
18. The Tribunal has decided that there is insufficient evidence before it to make the serious finding that the applicant has submitted a bogus document to the Department.^[1] Accordingly, the Tribunal accepts this document at face-value despite its concerns. The Tribunal notes that the financial sponsorship declaration guarantees living expenses of $20,290 which is marginally different to the applicant’s statement of 10 June 2020. This difference is inconsequential in the present case.
19. As the Tribunal is satisfied the applicant will have genuine access to the funds, cl.500.214(1) is met and the Tribunal is satisfied that the applicant meets cl.500.214.
20. 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

21. 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.

Andrew George
Member

Attachment – 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.

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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^[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, [361]-[362] (Dixon J).