SITATI (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, Subclass 573, made by an applicant from Kenya. The primary dispute concerned whether the applicant had demonstrated sufficient financial capacity, specifically whether the funds relied upon were provided by an "acceptable individual" as defined by the regulations. The applicant's uncle, Agufana Desi Pepela, a medical practitioner in Cairns, was identified as the financial supporter.

The legal issue before the Tribunal was whether the applicant was a "genuine applicant for entry and stay as a student," which required the Minister to be satisfied of the applicant's intention to comply with visa conditions and their access to funds to meet Schedule 5A financial capacity requirements. A key aspect of this was determining if the applicant's uncle qualified as an "acceptable individual" under Subclause 5A508(2), which defines acceptable individuals to include an uncle or aunt who is an Australian citizen, permanent resident, or eligible New Zealand citizen and usually resident in Australia. The delegate had previously assessed that the applicant failed to demonstrate that the required funding was provided by an acceptable individual.

The Tribunal noted that the applicant could not provide birth certificates to definitively prove the familial relationship with her uncle, as her father and the uncle were half-brothers, born to the same grandfather but different mothers. However, the Tribunal also noted that this same uncle had been accepted as an acceptable individual for the applicant's first student visa application. Applying the benefit of the doubt on this basis, the Tribunal found that Agufana Desi Pepela was indeed the applicant's uncle and an Australian citizen, thus meeting the definition of an acceptable individual. Consequently, the Tribunal found that the applicant satisfied the financial capacity requirement under Clause 573.223(2).

The Tribunal remitted the matter to the delegate for reconsideration, with a direction that the applicant met the criteria of Clause 573.223(2) for a Subclass 573 Higher Education Sector visa.