1603633 (Migration)

[2016] AATA 4707

1603633 (Migration) [2016] AATA 4707 (30 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alexandre Carlos Da Silva
Mrs Karoline Esteves

CASE NUMBER:  1603633

DIBP REFERENCE(S):  BCC2016/25776

MEMBER:Geraldine Hoeben

DATE:30/11/16

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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 30 November 2016 at 2:44pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who arrived in Australia on 21/07/15, applied to the Department of Immigration for the visas on 18 January 2016. The delegate decided to refuse to grant the visas on 26 February 2016. 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).

3. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because he was not a genuine temporary entrant.

4. The applicants were heard by the Tribunal via phone on 29/11/16 to give evidence and present arguments. The applicants were represented by their migration agent (MA) who also attended the telephone hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.223.

7. 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)     …

8. 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.

9. 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.

10. The applicant confirmed that he and his wife arrived in Australia on 21/07/15.The applicant also confirmed the MA’s submission that when he first arrived in Australia it was as a secondary applicant on his wife’s student visa - that he lodged this visa on the same day as his wife’s student visa ceased in which he then became the primary applicant and she the secondary applicant. He stated that he had applied for the visa because his wife had attained a level of English much greater than he and that they both believed that, in undertaking English language courses and becoming proficient in it, was the best for the both of them to obtain jobs on cruise ships – which ultimately was the objective of learning English in the first place which was the motivating factor as to the reason behind their decision to visit Australia.

11. In answer to the Tribunal’s question why it was that the date of 07/03/16 was significant in a notification by him of cessation of an English course and the non-commencement of another English course he replied that it was about this time he and his wife were informed about his unsuccessful visa application and that it was also at this time that they then had to revise their plans for their return flight to Brazil until such time as their visa application was finally determined. The Tribunal finds that this version of events is consistent with the information provided to the Tribunal today via the MA (30/11/16) that this fits in with a series of e-mails and booked airline e-tickets revolving around the prospective issuing of e-tickets to Brazil for both the applicant and his wife at this time as well as the proximity of date of receipt of the delegate’s decision being 26/02/16.

12. The applicant confirmed that he had completed his certificate 11 studies in English writing and speaking on 15/03/16. The Tribunal finds that this course was completed by the applicant as it is also consistent with the applicant’s PRISM’s record.

13. The applicant confirmed that he had commenced his certificate 111 course in English language and speaking in September this year.  This is supported by a letter dated 30/11/16 from the educational service provider campus manager also provided by the MA today. It does not, however, provide a transcript of attendance or subject progress so far on the basis of the manager’s belief that the service provider, consistent with DEEWR DIAC policy that the service provider does not formally monitor or report on student attendance. Whilst this is an inaccurate reflection of the DIAC policy as regards course attendance transcripts the Tribunal, nevertheless, as far as this case is concerned, accepts the applicant’s statement that he has commenced the course and is currently attending subjects to be accurate. This is also supported by four substantial payments for January, September, October as well as November 2016 as independent evidence that the applicant is paying for the course.  From this later evidence the Tribunal has inferred that, indeed, the applicant is attending the course. From all the evidence together and so far presented to the Tribunal, it also accepts that his attendance and subject progress must be at an acceptable level since such payments would not be so regular or up-to-date if he was not.

14. The Tribunal raised the issue how it was that the applicant and his wife focused on Australia as their preferred option to study the English language and he answered that Australia was well place in the tourism industry and that the standard of English courses here were higher than those in Brazil. He added it was his belief that access to employment on cruise ships was easier in Australia than most other western countries. He continued that he and his wife do not yet have children and that before they settled down permanently in their home country they also wanted to see some of the world.

15. The Tribunal asked the applicant if he had any independent corroborative documentary evidence that both he and his wife have been actively seeking employment on cruise ships and he replied no that most of it was via skype. He continued that sometimes he or his wife was successful in these interviews but because it was always the case that either he or she was successful at the interview, it was never the case that they were both successful together at the same time.

16. Whilst there is no independent corroborative documentary evidence as to the claimed interviews the Tribunal accepts, together with the other information and evidence given  by the applicant, that in this day and age it would not be unusual to conduct such interviews in what might be seen otherwise by some to be in a cavalier manner, that is, via skype.

17. Similarly, for the same reasons the Tribunal finds that the reason for the applicant to visit Australia and undertake English courses here and that this was regarded by he and his wife as a wonderful opportunity to see the world before they had children, to be a reasonable and credible explanation as to their good faith claim that the applicant would, soon after completing the current English course in 2017, they would depart Australia either on a cruise ship as employees or return to Brazil.

18. 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).

    Concluding paragraphs

19. 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.

20. As the Tribunal has found the primary applicant meets the requirement in cl 572.223 (1) (a) it further finds that the secondary visa applicant also meets the same requirement. In these circumstances the Tribunal will also remit the matter for reconsideration in respect of the secondary applicant.

    DECISION

21. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Geraldine Hoeben
    Member