1416323 (Migration)

[2015] AATA 3544

1416323 (Migration) [2015] AATA 3544 (21 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Clemencia Hermenegilda Torres Cavalcante

CASE NUMBER:  1416323

DIBP REFERENCE(S):  BCC2014/1914175

MEMBER:Don Lucas

DATE:21 October 2015

PLACE OF DECISION:  Melbourne

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(1)(a) of Schedule 2 to the Regulations.

Statement made on 21 October 2015 at 3:35pm

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

2. Where used in this decision:

   a.COE refers to Certificate of Enrolment in a course of study;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System;

   h.ELICOS stands for English Language Intensive Courses for Overseas Students.

3. The applicant applied to the Department of Immigration for the visa on 5 August 2014. The delegate decided to refuse to grant the visa on 16 September 2014. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted 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); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

5. The applicant appeared before the Tribunal on 15 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)    the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)    …

10. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    Background

12. The applicant is a 46 year old Brazilian national. She is presently enrolled to complete an Advanced Diploma of Management which commenced on 27 April 2015 and is due to be completed on 30 October 2015.

13. The applicant has been studying in Australia since August 2008. She first arrived in Australia in July 2008 with a Subclass 570 Independent ELICOS sector visa. The applicant completed general English courses at various levels until December 2010, and thereafter completed a Certificate III in Dental Assisting, a Certificate IV in Dental Assisting, and then a Diploma of Dental Technology in July 2013. Thereafter, the applicant undertook an IELTS preparation courses and general English again until July 2014.

14. The applicant has previously undertaken a Bachelor of Arts and postgraduate degree in Human Resource Administration in her home country. The applicant has stated that she intends to work in that health/dentistry industry in her home country Brazil and believes that her current Advanced Diploma of Management course will assist her in working in a dental practice in her home country.

15. The applicant’s evidence at hearing was that the course she was undertaking in the Advanced Diploma of Management was close to completion and she was intending to depart Australia at the conclusion of the course in October 2015. The applicant indicated that she intended to employ the skills she had attained by working in a dental practice in her home country, and that in Brazil the role of a dental assistant involved not only that technical aspects of assisting the dentist with procedures but also involved assistance with the running of the business itself, and her current course, which was intended to be her last course in Australia, was directly relevant to how she would be employed in her home country.

16. The applicant further gave evidence that she had an elderly mother in Brazil who at 82 years old was requiring additional care, which her siblings in Brazil were unable to provide for different reasons and the applicant herself was proposing to reside together with her mother upon her return.

17. The applicant gave evidence that she was widowed in 2002 and has not since re-partnered.

18. The applicant provided evidence of subsequent to the hearing concerning claims made at the hearing that the applicant owns a property in Brazil from which she derives rental income.

19. Generally, the Tribunal found the applicant at the hearing to be open and forthcoming with answers to questions.

20. Having particular regard to the proximity of the completion date of the applicant’s current course to the present – now within the forthcoming month, the Tribunal is of the view that it would be unreasonable now to not allow the applicant to complete the current course. Had she proposed any further courses beyond the current course. The Tribunal’s view and conclusions may have weighed toward a different outcome of the review in view of the applicant’s study history, however, the Tribunal has accepted the applicant’s evidence that she plans to return to Brazil after completing the current course at the end of October 2015.

21. For these reasons, despite some residual concerns, the Tribunal is of the view that the correct and preferable decision is to allow the applicant to complete the current course. The Tribunal’s finding is based on this view and would not be the same were there to be any proposed further studies.

    CONCLUSIONS

22. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.572.223(1)(a).

23. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

24. 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(1)(a) of Schedule 2 to the Regulations.

    Don Lucas
    Member