Gwazemba (Migration)

[2017] AATA 1304

Gwazemba (Migration) [2017] AATA 1304 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kudzanai Gwazemba

CASE NUMBER:  1620184

DIBP REFERENCE(S):  CLF2016/39581

MEMBER:Lilly Mojsin

DATE:18 July 2017

PLACE OF DECISION:  Sydney

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 572 Vocational Education and Training Sector visa:

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

Statement made on 18 July 2017 at 3:24pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Financial capacity – Evidence of aunt’s capacity provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.223(2), cl 5A408, Schedule 5A

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 Immigration on 21 November 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 June 2016 in Australia in order to undertake study in Australia, at Astute Training, for a Certificate IVi in Community Services commencing on 18 July 2016 and ending on 18 July 2017.

3. 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).

4. The delegate refused to grant the visa on the basis that the visa applicant (the applicant) did not satisfy the requirements of cl 572.223(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not satisfy cl.5A408 of Schedule 2.

5. The applicant appeared before the Tribunal to give evidence and present arguments on 12 July 2017.  The Tribunal also heard evidence from the applicant’s aunt Chipo Gondo, by telephone.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. As the applicant is currently enrolled in an as the principal course, the subclass that may be granted is Subclass 572.

2. The issue before the delegate was whether the applicant met the criterion cl.5A408 of Schedule 2 and cl.572.223(2).

3. The applicant advised the Tribunal that he was supported financially by his aunt. He provided details of birth certificates and death certificates in order to establish that his aunt was his relative. He also provided his aunt’s Australian citizenship certificate.

4. The Tribunal discussed with the applicant the amount required to meet the financial requirements, being $2 800.

5. The applicant’s aunt confirmed to the Tribunal that she was his aunt and that she was supporting him and had done so since he was a child. The applicant’s aunt provided details of home loan, showing available funds of $39,993 as at 11 July 2017.

REASONS AND FINDINGS

1. 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.

2. The delegate found that the applicant did not meet the financial capacity requirements to satisfy Schedule 5A. In this application, the applicant holds a passport of Zimbabwe. The assessment level for a holder of such a passport for Subclass 572 (the subclass for the applicant's principal course) is assessment level 3. The highest assessment level to which the applicant is subject is assessment level 3.

3. The financial capacity the applicant must demonstrate is relevantly prescribed in cl.5A408 as the application was made in Australia and provides that

(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 12 months :

(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.

1. 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. The applicant is enrolled in Certificate IV in Community Services.  The applicant's living costs are set by the regulation at $18 610 for 12 months. Costs have assessed for one month.

2. In relation to the course fees these have been paid.  The Tribunal has estimated the applicant's travel costs to be $1 000.

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

Course fees	$0
Living costs	$1 800
Travel costs	$1 000
TOTAL	$2 800

1. During the hearing it was discussed with the applicant that he was required to provide evidence that the regular income of any individual (including himself) was sufficient to accumulate the level of funding required.

2. ‘Funds from an acceptable source’ is defined in subcl. 5A408(2) and 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 the applicant or an individual who is providing support to the applicant;

   (aa) if paragraph (a) does not apply—a money deposit that the applicant, or an individual who is providing support to the applicant, 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, the applicant or an individual who is providing support to the applicant;

3. The definition “acceptable individual " [5A101 Definitions] means one or more of the following:

   a)the applicant

   b)the applicant's spouse or de facto partner

   c)a parent of the applicant

   d)grandparent of the applicant

   e)a brother or sister of the applicant

   f)an uncle or aunt of the applicant who is:

   (i)  an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (ii)  usually resident in Australia.

4. ‘Funds from an acceptable source’ is defined in subcl. 5A408(2). Overall the applicant needs to provide evidence of $9 050. A ME Bank loan statement, from the aunt of the applicant, with a redraw facility indicates that she has $39,993. The applicant is employed a registered nurse in a NSW hospital. She is an Australian citizen. The Tribunal accepts that the funds came from an acceptable source. The Tribunal accepts that the applicant’s aunt is an acceptable individual. The Tribunal finds the applicant meets cl.5A408(2)b.

5. The Tribunal finds that the applicant has established that he 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. The Tribunal finds that the applicant meets cl.5A408(1)(a) and cl.5A408(1)(b)

6. On the basis of the evidence, the Tribunal is also satisfied that the regular income of the applicant's aunt is sufficient to accumulate to the level of funding to be provided for the remainder of the applicant's stay in Australia. The applicant therefore meets cl.5A408(1)(c).

7. The applicant has provided the Department with a declaration in the visa application stating that he has access to sufficient funds to support himself for the total period of his stay in Australia. The applicant therefore meets cl. 5A408(1)(aa).

8. On the basis of the above findings, the Tribunal finds that the applicant has given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 3, the highest assessment level for the applicant. Accordingly, the applicant satisfies the requirements of cl.572.223(2)(a).

9. 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 applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

   • cl.573.223(2) of Schedule 2 to the Regulations

Lilly Mojsin
Member