Alves Silva (Migration)

[2019] AATA 3525

Alves Silva (Migration) [2019] AATA 3525 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rafaela Alves Silva

CASE NUMBER:  1809278

HOME AFFAIRS REFERENCE(S):           BCC2018/380757

MEMBER:Peter Booth

DATE:15 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 15 August 2019 at 4:57pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of proposed additional stay – value of course – career plan – work experience – income disparity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 Home Affairs on 14 March 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 January 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 12 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.

8. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

9. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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 only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The applicant gave evidence at the hearing the substance which was as follows.

12. The applicant had read and understood the decision of the Minister’s delegate refusing her application for a student visa.

13. The applicant arrived in Australia on 29 October 2017 as the holder of a tourist visa valid for three months. The applicant gave evidence that she applied for a student visa because she felt the need to improve her English. She applied for a student visa in January 2018, and which application was refused. She said that her intended field of study was an English course in order that she could undertake a Master’s degree in Brazil.  She added that the Master’s degree was in “administration”. In answer to a question from the Tribunal as to why she needed to undertake an English course in order to study in her home country, she said that some education institutions the teachers delivered the classes in English, and that some textbooks were also in English, accordingly she needed to improve her English.

14. The applicant gave evidence that she enrolled in a Certificate I English course in January 2018, but did not complete it. She said that once the education provider learned that her visa application had been rejected, she was informed that she would be transferred to another school. However, she subsequently learned that the education provider was going to cease providing courses and that, accordingly, she investigated other institutions. Thereafter, she became pregnant and this interrupted her studies for a short time. The Tribunal accepts her evidence on this point but notes that it did not feature largely in her explanation.  It is given little weight. 

15. She then enrolled in a Certificate II course in English but did not start it because she felt confident in her English by that stage. Thereafter, she sat the entrance examination for a Certificate IV course in Business Administration.  She was accepted into the course. She is studying that course currently and expects to complete it in approximately one week. She is enrolled in a Diploma of Leadership and Management which will commence shortly, and expects it to be completed by September 2020.

16. The applicant informed the Tribunal that she had worked as a teacher in Brazil for approximately two years, as a vocational educator, also teaching short courses in ‘Corporate Administration’.  The applicant gave evidence that she had completed a Bachelor’s degree in Economics in Brazil. She informed the Tribunal that upon returning to Brazil, she intended to return to a career as a ‘Business Administration’ teacher, as well as undertaking further studies in business administration. The Tribunal enquired why, having regard to her background and education qualifications, she felt the need to undertake vocational courses in business administration, as well as in leadership and management, in Australia. The applicant said that the courses in Australia are “very practical”, whilst her university studies had been rather more theoretical. She considered that that she needed to understand the day-to-day operations of a business in order to teach vocational courses in business administration.

17. The applicant said that the Diploma in Leadership and Management course was available in Brazil but that it was very different, focusing on theoretical matters rather than practical application. She added that while she had studied economics, she had never been “in charge of a team”, and had not taught about leadership. She said that she needed to understand these things in order to teach them.

18. The applicant gave evidence that she did not intend to study when she arrived in Australia. The Tribunal enquired why she had changed her mind. In answer she said that she could not speak sufficient English, and felt that she had needed to undertake further English language study.

19. In response to a series of questions from the Tribunal, the applicant said that she had a return air ticket to leave Australia on 24 January 2017 and that once she had arrived, she travelled largely within the Melbourne metropolitan area; although she did visit some regional tourist destinations proximate to Melbourne.  The tourist activities she said occupied approximately two or three months.

20. The applicant said that she enrolled in the two English courses on 15 January 2017.  The Tribunal enquired why she would enrol in two courses that would take approximately one year to complete, within nine days of her intended departure from Australia. The applicant responded by stating that she thought she could delay her departure, if necessary.  The applicant was employed in Brazil as a teacher on a short-term contract basis, although apparently the contracts were renewed, as a matter of course. The applicant travelled to Australia during a period when she had elected not to renew her contract, although she gave evidence that she expected the contract to be renewed upon her return to Brazil.

21. The applicant was informed that the student visa had been refused on 14 March 2018.  At the time she travelled to Australia, the applicant was living with her parents in Brazil. The applicant has not returned to Brazil since her arrival in Australia.

22. The applicant’s immediate family in Brazil comprises her mother and father, brother, sister and grandmother.  She has no assets in Brazil and gave evidence that she is not currently working in Australia.

23. The applicant had provided the Tribunal with a letter in support of her application dated 8 August 2019. Her migration agent has also provided the Tribunal with a submission dated 9 August 2019. The applicant’s statement is largely consistent with her evidence at the hearing. The migration agent’s submission is drawn heavily from the applicant’s letter in support of her application however it is consistent with the applicant’s oral evidence.  Both documents have been taken into account in this decision.

24. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with clause 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.

25. The Tribunal has considered the applicant’s circumstances in her home country.  The applicant is unmarried and is from Brazil.  The applicant has provided evidence of family ties to her home country or other economic incentives to return. When considering the applicant’s circumstances in her home country, the Tribunal therefore finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the proposed study.   The Tribunal notes that since arriving in Australia, the applicant has not returned to Brazil.  However, while the Tribunal accepts that the applicant may have family ties to Brazil, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Brazil.

26. The Tribunal has considered the applicant’s potential circumstances in Australia.  The applicant first arrived in Australia on 29 October 2017 as a holder of a tourist visa valid to January 2018.  The proposed study would extend the applicant’s stay until at least September 2020.  The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia.  Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine student.  Rather, it suggests the applicant has decided to extend her stay in Australia by utilising the Student Visa Programme.

27. The Tribunal places some weight on the value of the course to the applicant’s future.  However, the Tribunal notes that this course plan is inconsistent with the plans when she initially entered Australia as a tourist.  The applicant now wishes to pursue a Diploma of Leadership and Management course in Australia.  The course is asserted to have relevance to her future employment.   This is given little weight because she already has a degree in economics and has worked as a vocational teacher for two years in Brazil.

28. The Tribunal notes that the applicant worked as a teacher in Brazil and Australia. The Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has experience as vocational teacher.  The Tribunal is therefore not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to her future beyond the qualifications she already holds.

29. The Tribunal gives substantial weight to the fact that the applicant only applied for the vocational English courses a few days before she was due to depart Australia.

30. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between Brazil and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Brazil.

31. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.  The applicant has not demonstrated any clear and substantial improvements arising from the applicant’s proposed study but will outlay the significant time and monetary commitment this course will require.  Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.

32. The Tribunal has given regard as to whether there is any other relevant matter.  The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

33. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.  The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

34. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the Student Visa Programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

35. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in Brazil; political or civil unrest circumstances in Brazil; remuneration the applicant could expect to receive in Brazil or a third country compared with Australia; circumstances in Brazil relative to Australia or any other country; and the applicant’s circumstances in Brazil relative to others in that country.

36. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

37. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia, as a student.

38. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

39. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

40. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

41. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Peter Booth
    Member