BALEIRO PEREIRA CARLOS (Migration)

[2017] AATA 1469

BALEIRO PEREIRA CARLOS (Migration) [2017] AATA 1469 (10 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Elisiane BALEIRO PEREIRA CARLOS
Janio PEREIRA CARLOS

CASE NUMBER:  1614828

DIBP REFERENCE:  BCC2016/2200052

MEMBER:Lilly Mojsin

DATE:10 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

·cl.572.223(2) of Schedule 2 to the Regulations.

Statement made on 10 August 2017 at 4:32pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Financial capacity – Evidence of  money held by brother-in-law – Sufficient funds from acceptable source

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 572.223(2), Schedule 5, cl 5A101, cl 5A411

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants applied to the Department of Immigration for the visas on 29 June 2016.

3.    The delegate decided to refuse to grant the visas on 25 August 2016.

4.    At the time the visa application was lodged the Student (Temporary) (Class TU) visa 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), or whether the applicant has the support of the relevant Minister (Subclass 576).

5.    The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.572.223 (2) of Schedule 2 to the Regulations.

6.    The applicants appeared before the Tribunal on 19 July 2017 and 10 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

7.    The applicants were represented in relation to the review by their registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.    The applicant has provided to the Tribunal and Overseas Student Confirmation of Enrolment to study a Diploma of Salon Management commencing on 24 July 2017 and ending on 24 April 2018.

9.    Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

1. At the Tribunal hearing the applicant discussed with the applicant the financial requirements of the legislation. The Tribunal and the applicant agreed that the sum of $24,000 was required in order to complete his studies.

2. The applicant has provided details of monies held, in excess of $80 000 in the name of the brother of the applicant, Mauro Pereira Carlos.

REASONS AND FINDINGS

1. As the applicant is currently enrolled in a Diploma of Salon Management as the principal course, the subclass that may be granted is Subclass 572.

2. The issue before the Tribunal is whether the applicant is a 'genuine applicant for entry and stay as a student' having regard to the prescribed matters. The Regulations require that the Minister is satisfied that the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

3. The applicant holds a passport of Brazil. The assessment level specified in the relevant instrument for a holder of such a passport for subclass 572 (the subclass for the applicant's principal course) is assessment level 2, which is also the highest assessment level to which the applicant is subject.

4. The delegate found that the applicant did not meet the financial capacity requirements to satisfy Schedule 5A. The highest assessment level to which the applicant is subject is assessment level 2.

5. Clause 5A411 requires the applicant to give evidence of funds from an acceptable source that are sufficient to meet her course fees, school costs and living costs for the first 12 months and that they are sufficient to meet her travel costs. Evidence must also be provided of a declaration that the applicant has access to funds from an acceptable source that are sufficient to meet these costs for the remainder of her stay in Australia.

6. Clause 5A101 relevantly provides that

first 12 months , for an applicant, means the period that:

(a)  begins

(i)  ………. or

(ii)  if the application is made in Australia--on the day that the student visa is expected to be granted to the applicant; and

(b)  ends on the earlier of the following:

(i)  the day 12 months after the beginning of the period;

(ii)  the last day of the applicant's proposed stay in Australia.

1. In this application the first 12 months begins on the expected date of visa grant, which is approximately 24 August 2017. The first 12 months ends on the earlier date of either 12 months later or the last day of the applicant's proposed stay in Australia.

2. The applicant is enrolled in Diploma of Salon due to be completed on 24 April 2018.  The Tribunal has calculated costs for 9 months. 

3. In relation to the course fees, evidence has been provided that $4 400 is outstanding. The Tribunal has estimated the applicant's travel costs to be $2 000. The Tribunal has estimated living costs as $13 958, a total amount of $18 843.

4. The applicant must therefore demonstrate financial capacity in the following amounts:

Course fees	$  4 400
Living costs	$ 18 843
Travel costs	$  1 000
TOTAL	$24 243

1. Funds from an Acceptable Source. Clause 5A411(2) indicates that funds from an acceptable source does not include the value of an item of property.

2. The applicant has provided evidence of  money held by her brother-in-law in the ANZ Bank in an amount of $82 118.53 as at 30 June 2017.

3. The Tribunal finds that the applicant has established that she has provided evidence of 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 travel costs.

4. There is evidence from the applicant's brother-in-law that he is supporting the applicant's study in Australia and that his regular income is sufficient to meet the amount of money being provided as outlined in his ANZ Bank Account. 

5. As the source of the funds does not include the value of an item of property, and the applicant has provided evidence of funds in her brother-in-law’s name to the sum of $82 118.53 which is more than the required amount of $24 243, the Tribunal is therefore satisfied that the applicant has funds from an acceptable source that are sufficient to meet her expenses for course fees, living costs and travel costs for the first 12 months.

6. There is a declaration in her visa application that she has access to funds from an acceptable source to meet these fees for the proposed stay in Australia.

7. The letter from the applicant's brother-in-law also indicates he will fund the applicant's study expenses in Australia. The Tribunal finds the applicant meets cl.5A411(a), 5A411(b) and cl.5A411(c).

8. The Tribunal finds the applicant meets cl.5A411(1). Cl.5A411(1A) does not apply.

9. The Tribunal finds the applicant meets Clause 5A411 and the applicant satisfies the requirements of cl.572.223(2)(a).

10. The Tribunal must also be satisfied that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity.

11. On the evidence before it, the Tribunal accepts that, while holding the visa, the applicant will have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity. The applicant therefore meets cl.572.223(2)(c).

12. 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

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training visa:

   ·cl.572.223(2) of Schedule 2 to the Regulations

Lilly Mojsin
Member