SITATI (Migration)

[2017] AATA 1256

SITATI (Migration) [2017] AATA 1256 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  DEBRA SITATI
Anthony Ombui Machoka
Chelsea Bonareri Ombui

CASE NUMBER:  1609637

DIBP REFERENCE(S):  BCC2016/1130419

MEMBER:Lilly Mojsin

DATE:5 July 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 573 Higher Education Sector visa:

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

Statement made on 05 July 2017 at 2:36pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 – Genuine temporary entrant – Financial capacity of acceptable individual who can support financially – No documentary evidence of relationship with uncle – Was accepted as acceptable individual for grant of first student visa – Benefit of doubt given he is uncle

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 573.223(2), Schedule 5A, cl 5A508, cl 5A508(2)

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 7 June 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant [applicant] applied for the visa on 15 March 2016 in order to study a Master of Business Administration.

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 applicant did not satisfy the requirements of cl.573.223(2) of Schedule 2 to the Regulations.

5. The applicants appeared before the Tribunal on 5 July 2017 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study at the time of application, the relevant subclass in this application is Subclass 573.

7. The applicant has successfully completed a Master of Laws from UNSW in Corporate and Commercial Law. She has the financial support of her uncle, Agufana Desi Pepela, who is a medical practitioner in Cairns. His passport has been provided to the Tribunal.

8. The applicant is unable to provide birth certificates in order that confirm the family relationship between her and her uncle, her father’s half brother.

9. The delegate assessed, in relation to financial capacity of the applicant, that she was unable to show that the required funding was provided by an acceptable individual who can support the applicant financially.

   REASONS AND FINDINGS

10. 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.

11. In this application, the applicant holds a passport of Kenya. The assessment level for a holder of such a passport for Subclass 573 (the subclass for the applicant's principal course) is assessment level 3.

12. The financial capacity the applicant must demonstrate, in order to satisfy cl.573.223(2) is relevantly prescribed in cl.5A508.

13. The delegate has assessed that the applicant does not meet the requirements of subcl. 5A508(2). The delegate was satisfied that the applicant met the remaining requirements of cl.573.223.

14. Funds from an acceptable source’ is defined in subcl. 5A508(2). 

    ‘acceptable individual’ 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)  a 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.

15. The evidence before the Tribunal is that the applicant’s grandfather had two official wives and two concubines. He sired children with his concubines. The applicant’s father and Agufana Desi Pepela are half-brothers. The applicant is unable to provide birth certificates in order to confirm the family relationship between her and her uncle, her father’s half brother.

16. This is the applicant’s second student visa application, her uncle was accepted as an acceptable individual in order for her to obtain her first student visa. On that basis the Tribunal gives the applicant the benefit of the doubt and accepts that Agufana Desi Pepela is her uncle and he is an Australian citizen. The Tribunal finds that he is an acceptable individual as required by subcl. 5A508(2). The applicant therefore meets cl.573.223(2).

17. As the Tribunal has found the applicant meets the requirement of cl.573.223(2), it will remit the matter to the delegate for reconsideration.

    DECISION

18. 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 573 Higher Education Sector visa:

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

    Lilly Mojsin
    Member