Brandi (Migration)

[2019] AATA 2648

Brandi (Migration) [2019] AATA 2648 (30 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Diletta Brandi
Mr Paolo Mulas

CASE NUMBER:  1706110

HOME AFFAIRS REFERENCE(S):           BCC2017/338229

MEMBER:Meredith Jackson

DATE:  30 May 2019

PLACE OF DECISION:  Brisbane

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Second named applicant to be reconsidered on the basis of the remit of the primary applicant.

Statement made on 30 May 2019 at 12:43pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – credible future plans – hospitality – cookery – consistent with employment history – strong personal ties to home country – decision under review remitted

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 Immigration and Border Protection on 8 March 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants applied for the visas on 25 January 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 delegate was not satisfied the applicant intends genuinely to stay in Australia temporarily.

4.    The applicants appeared before the Tribunal on 24 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary applicant, Mr Paolo Mulas, in relation to the applicant’s case. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

5.    The applicants were assisted in relation to the review by their registered migration agent.

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

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 applicant for entry and stay as a student.

Genuine applicant for entry and stay as a student (cl.500.212)

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, which is attached to this decision, 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.

1. 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.

Case summary

1. The primary applicant (the applicant) Ms Diletta Brandi is a 33 year old citizen of Italy who first arrived in Australia on 7 December 2014 on a working holiday visa. She was issued a second working holiday visa on 5 January 2016 and on 25 January 2017, she applied for the student visa under review with secondary applicant named as Mr Paolo Mulas. The visa was refused on 8 March 2017 on the basis that the applicant was not a genuine temporary entrant. Ms Brandi is currently studying hospitality at advanced diploma level on a bridging visa, having completed a commercial cookery course and a diploma course in hospitality. She submits she is a diligent student who intends to return to Italy after completing her studies to find work as a chef.

Written evidence provided

1. The applicant provided documentary evidence relevant to:

   a)The delegate’s decision;

   b)Her personal circumstances and reasons for being in Australia temporarily;

   c)Her academic performance in commercial cookery and hospitality courses;

   d)Her financial position;

   e)Overseas travel for the parties and the applicant’s mother on a visit to Australia;

   f)Information regarding her mother’s illness.

The hearing

1. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about her held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision.

2. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if she wished to seek further time to consider it. The applicant said she was prepared to comment on the information immediately after it was read to her and said she understood it and why it was relevant to her case.

3. The applicant stated the following in the hearing:

   a)The PRISMS record appeared correct;

   b)She did not apply for a student visa initially because she and her partner came to Australia only for an experience and she spoke no English initially;

   c)After she met people in Australia, she became aware of the potential to work and study in hospitality at the same time; in Italy working in hospitality on such a basis is more difficult if you are not qualified

   d)It is difficult in Italy to enter study at the age of 30; 

   e)Her working life had been in hospitality in Italy, but as a barmaid, not in a kitchen as she had no qualifications; with experience and qualifications she will seek to work in Italy as a chef in a tourist town in her region in a five-star hotel; she has worked in a Hilton hotel in Australia; her qualications, experience and acquisition of English will aid her;

   f)After arrival she “fell in love” with Australia’s multicultural community and cuisine; she decided to take up the opportunity to work and study here;

   g)She did not intend to remain in Australia because it was not her country, Italy was her home and she had family and her culture there and had a “beautiful relationship” with all her family; she was losing time with them; her partner was her only family in Australia and he wanted to go back to Italy also;

   h)She did “not really” have plans to study beyond her advanced diploma course but she had “not really” made up her mind;

   i)Economically she would live well in Italy as a chef and have a good life; she had friends who were chefs and she understood the income structure;

   j)She had not applied for any work or skilled visas in Australia beyond her working holiday visas; she had not applied for visas in other countries and, while she had taken holidays in other countries, she had not lived elsewhere; she had always complied with any visa conditions;

   k)She had studied hard in Australia, she loved the school and never missed a lesson, she was immersed in it;

   l)Her mother would need her support in future as she was ill.

4. The secondary applicant gave evidence, stating:

   a)He wished to confirm that they want to go home to Italy; his friends and family were in Italy and his sister was in Belgium, not far away and he was missing out on seeing her children grow up;

   b)He would not support his partner for any other visas;

   c)In Australia he worked in construction, Brisbane markets, those sorts of jobs; he was not interested in a career here; he had been a security guard and he had good opportunities to work in the same role in Italy when they returned;

Conclusions

1. The Tribunal has considered the applicant’s evidence against the specified factors in Direction 69, particularly the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future.

2. The Tribunal concludes that the applicant broadly satisfies the assessment requirements of Direction 69. On the evidence supplied by her education provider, she has been a diligent student and has successfully completed her courses. She submitted evidence post-hearing to the effect that a deferment/suspension noted in her PRISMS record was an erroneous entry by her education provider and she had not sought deferment at any time. According to her PRISMS record, she has progressed academically from certificate IV level to advanced diploma level in related fields since she began studying in 2017. Since arrival in Australia she has attained a high level of English language and has a plan for her future that is consistent with her employment record in hospitality both in Italy and Australia. The Tribunal considered her articulation of her reasons for enrolling in hospitality generally to be credible. She has stated in sworn evidence that she has worked throughout her adult life in hospitality and considers it to be her vocation. Her current courses are directly relevant to her planned career on return to Italy. She argues persuasively that she could not work in a professional kitchen in Italy without qualifications and before she left she was only able to secure bar work. She submits that with the qualifications in cookery and hospitality she is attaining in Australia, she will be able to work in tourism as a chef and have “a good life” in her home country and region on an acceptable salary. She submits that as a mature age student, it is more difficult in Italy to enter vocational education; she is very impressed by Australia’s education environment and its multicultural community and cuisines. She submits she has only her partner as family in Australia and the rest of her family, to whom she is close, are in Italy. She and her partner, the secondary applicant, submit that they are keen to return to their family lives in Italy. The applicant has provided evidence that her mother has a chronic illness as this is a pull factor for returning home. The secondary applicant gave evidence to the effect that he was homesick for Italy and would not support any more visa applications for the applicant. The Tribunal weighs the factors above in the applicant’s favour.

3. The applicant stated she has not applied for any visas to prolong her stay beyond study and the Tribunal has no evidence before it that she has not abided by visa conditions in Australia or other countries. The Tribunal weighs this consideration in the applicant’s favour.

4. Overall, having weighed the evidence, the Tribunal concludes the applicant is a genuine student who intends genuinely to remain in Australia to complete her studies and return to Italy to commence a career in cookery and hospitality.

5. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

6. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

7. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

Secondary applicant

1. The second named applicant’s entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether they meet any additional visa criteria applicable. Given that the application is being remitted to the Department to consider the remaining criteria for a Subclass 500 visa in respect of the primary applicant, it is appropriate that the second named applicant be reconsidered on the basis of the remit of the primary applicant.

DECISION

1. 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 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

   Second named applicant to be reconsidered on the basis of the remit of the primary applicant.

Meredith Jackson
Member

Attachment – Direction No.69

DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)

I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

Dated: 18 April 2016

Peter Dutton
Minister for Immigration and Border Protection

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

Part 1 of Direction No. 69 - Preliminary

Name of Direction

This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Regulations mean the Migration Regulations 1994.

Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Spouse has the same meaning as the definition of the term in section 5F of the Act.

Student visa means a Subclass 500 (Student) visa

Student Guardian visa means a Subclass 590 (Student Guardian) visa.

Application

This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

Preamble

The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

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

d.any other relevant matter.

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

1. Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

2. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country

1. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

2. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia

1. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

1. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

The applicant's immigration history

1. An applicant’s immigration history refers both to their visa and travel history.

2. When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   b.Previous travels to Australia or other countries, including:

   i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

1. If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

Any other relevant matters

1. Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.