1605658 (Migration)

[2016] AATA 4301

1605658 (Migration) [2016] AATA 4301 (18 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Leonardo Vanicore
Miss Diana Vanicore
Ms Evelina Pastilati

CASE NUMBER:  1605658

DIBP REFERENCE(S):  BCC2014/637327

MEMBER:Adrian Ho

DATE:18 August 2016

PLACE OF DECISION:  Melbourne

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 18 August 2016 at 5:19pm

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. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

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

   d.VET refers to Vocational Education and Training;

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

   f.Direction 53 or the Direction refer 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.

3. The applicants applied to the Department of Immigration for the visas on 5 March 2014. The delegate decided to refuse to grant the visas on 14 October 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.

5. The applicant appeared before the Tribunal on 10 August 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Genuine Temporary Entrant

8. A major 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)     …

9. 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.

10. 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.

11. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.

12. The tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

13. The applicant and his witness-wife were transparent witnesses at hearing.

14. Based on their written and oral evidence the tribunal accepts they maintain a shop in Florence selling handcrafted and painted items of jewellery and other decorations which is staff by a friend and employee, and also maintain a website selling those items.

15. The tribunal accepts that the applicant’s wife is the artist who creates the items for sale and must focus on the production of artistic items of value.  The tribunal accepts that the couple have a plan for him to acquire English acumen and deployable business skills to grow and market the business in Italy and internationally.

16. The applicant is not a model student.  Since arriving in 2012 he has progressed poorly in English, which has affected studies in other areas. 

17. The applicant now proposes to study a certificate IV in international trade and a diploma of international business.

18. While the applicant has changed the courses he wishes to study, the tribunal accepts that his studies are still selected to give him skills and knowledge useful to the couple’s business based in Italy and he has a genuine intention to acquire those skills for the purposes of the business.

19. The tribunal gives some weight to the proposition that the couple have legal residence in Italy and in Europe, with access to residence in economies that are performing at a higher rate than the economy of Italy.

20. The tribunal gives weight to the proposition that the courses selected by the applicant do not appear to qualify him, or the couple, for general skilled migration.

21. Based on their transparent evidence, the tribunal accepts at the present time that they intend genuinely to stay in Australia temporarily.

22. However, the tribunal considers that the applicant’s performance in courses now proposed will become central to future findings on this question.  It is incumbent on the applicant to select courses in which he has a reasonable prospect of successful completion.  If the applicant continues not to complete courses, that may suggest that the intention of acquiring skills to be used outside Australia is not genuine.

23. 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).

24. 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

25. 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.

    Adrian Ho
    Member