HARO DIAZ (Migration)

This matter concerned an appeal by an applicant for a Student (Temporary) (Class TU) visa, Subclass 572, against the Tribunal's decision to affirm the refusal of his visa application. The primary dispute revolved around whether the applicant met the requirements of clause 572.223 of the Migration Regulations 1994, specifically concerning the genuine temporary entrant criteria and the demonstration of sufficient financial capacity from an acceptable source.

The Tribunal was required to determine whether the applicant satisfied the genuine temporary entrant requirements under clause 572.223, which necessitates evidence of financial capacity in accordance with Schedule 5A of the Regulations, given the applicant's assessment level. A key legal issue was whether funds provided by the applicant's aunt, who resided outside Australia, constituted an acceptable source of financial support for the purpose of meeting the visa requirements.

The Tribunal reasoned that the applicant, holding a passport from Peru, was subject to Assessment Level 2 for a Subclass 572 visa. As the applicant was not an "eligible VET student" with a Confirmation of Enrolment, clause 572.223(1A) did not apply, and therefore, the applicant was required to provide evidence in accordance with Schedule 5A for the highest assessment level. While the applicant's aunt had provided funds equivalent to AUD $14,369.38, the Tribunal found that she was not an "acceptable individual" for the purposes of Schedule 5A, as she was a resident of Peru. Consequently, these funds could not be considered in assessing the applicant's financial capacity. The applicant had only provided evidence of his own funds totalling $9,409.85, which was less than the required amount of $22,503.83.

The Tribunal concluded that the applicant had failed to demonstrate that he had funds from an acceptable source in accordance with Schedule 5A. Accordingly, the applicant did not satisfy the requirements of clause 572.223(2)(a), and therefore, the criteria for the grant of a Subclass 572 visa were not met. The Tribunal affirmed the decision not to grant the visa.