CLAUDINO CORREIA (Migration)

[2018] AATA 5712

CLAUDINO CORREIA (Migration) [2018] AATA 5712 (22 October 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Fabiane CLAUDINO CORREIA
Mr FABIO LIBERIO TRINDADE

CASE NUMBER:  1712573

DIBP REFERENCE(S):  BCC2017/792911

MEMBER:Gabrielle Cullen

DATE OF DECISION:  22 October 2018

DATE CORRIGENDUM

SIGNED:7 May 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 28 presently read:

” The Tribunal accepts that the balance of her family resides in Brazil. While her uncle is in Australia, it accepts her parents and sibling are in Brazil and she will not stay as her father is old and not well. Further, while her husband is with her in Australia he is also on a temporary visa. There is no adverse immigration record. There is no evidence of military service commitments or political and civil unrest in Nepal which would present as significant incentive for the applicant not to return to his home country”

The word Nepal is a typographical error and should be read:

” The Tribunal accepts that the balance of her family resides in Brazil. While her uncle is in Australia, it accepts her parents and sibling are in Brazil and she will not stay as her father is old and not well. Further, while her husband is with her in Australia he is also on a temporary visa. There is no adverse immigration record. There is no evidence of military service commitments or political and civil unrest in Brazil which would present as significant incentive for the applicant not to return to his home country”

Gabrielle Cullen
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Fabiane CLAUDINO CORREIA
Mr FABIO LIBERIO TRINDADE

CASE NUMBER:  1712573

HOME AFFAIRS REFERENCE(S):           BCC2017/792911

MEMBER:Gabrielle Cullen

DATE:22 October 2018

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 22 October 2018 at 12:56pm

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – Subclass 500 (Student) –  genuine applicant for entry and stay as a student – studying, attending the course and achieving course progression – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212

3 

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 30 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) arrived in Australia on 28 November 2016 on a subclass 600 tourist visa valid to 28 February 2018. She has not departed Australia since her arrival.

3. The applicants applied for the visas on 28 February 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.

4. Certificate of Enrolments attached to the applicant’s current application refer to the applicant studying three English courses from 28 February 2017 to 8 June 2018. The written evidence submitted by the applicant indicates she has successfully completed these courses achieving an attendance rate of 93% and paying $11,585 for these courses. The PRISMS record also indicates she finished these courses.

5. She is now enrolled in a Certificate III in Business from 13 August 2018 to 3 May 2019, a Certificate IV in Business from 20 May 2019 to 7 February 2020 and a Diploma of Leadership and Management from 24 February 2020 to 5 February 2021. At hearing the applicant was able to provide knowledge of her current course consistent with a person attending and studying the course. She also provided written evidence of having paid as at 17 October 2018 $2,830 towards the business course.

6. To the Department both she and her husband (the second named applicant ) provided statements indicating that the applicant came to Australia to visit her uncle, the difficulties in her current job of not being also able to speak English (she claims to be a business analyst with Seaf Artes) and her uncle’s advice to study English in Australia. The applicant advised that she has permission from her employer to take leave to study in Australia as her company understands the benefits of studying in Australia.

7. The delegate decided to refuse to grant the visas on 30 May 2017. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student. The delegate was concerned that her uncle is a permanent resident in Australia, that her initial intention was to come to Australia as a tourist and as she has not provided substantial reasons as to why she has chosen to study these courses.

8. On 14 June 2017 the applicants lodged an appeal to the Tribunal and attached the decision of the Department. She provided a letter from her employer giving her leave to study in Australia until June 2018.

9. On 7 September 2018 the Tribunal wrote to the applicants and invited them to attend a hearing on 22 October 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show her past studies in Australia. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

10. The applicants appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. They were assisted by an interpreter in the English and Portuguese languages.

11. She provided documents as to courses passed and fees paid. She provided a further detailed statement as to why she is a genuine applicant for entry and stay as a student. She also provided a letter from her employer in Brazil, Seaf Artes Grafica dated 13 September 2018. The letter notes that it is in the company’s interests to have qualified and bilingual employees, outlines that they are aware of the applicant’s study in business and are prepared to offer her a potion on return to Brazil.

12. The Tribunal raised with the first named applicant (the applicant) that the matter before it is whether she meets the requirements of cl.500.212. It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that she is a genuine applicant for entry and stay as student.

13. As to her study in Brazil, she completed her Higher School Certificate. In Brazil she worked as a business analyst for Seaf Artes. She described in detail why she wishes to study English and business. She notes there is no English business course in Brazil and how learning English and business will promote her career.

14. The Tribunal discussed with her, as outlined above, courses completed and her current study. She was able to give evidence in detail as to her current course.

15. The Tribunal raised its concern that a company would wait four years for her to finish her courses in Australia. She said her employer needs qualified people who can speak English.

16. She said besides her uncle, her parents and siblings are in Brazil. She undertook to return on completion of the courses. She said her father is not well and old and it would be very difficult for her to stay in Australia.

17. When asked why she did not study in Brazil; she said she would learn faster in Australia surrounded by English. She noted the support of her uncle who she is living with.

18. Her student agent noted that the applicant had paid over $13,000 for her study so far in Australia; she has a strong study record, passing and with an attendance rate of 93%. He noted that they are a young couple and he can attest to the opportunities for a person with strong English skills in the employment market in Brazil. He noted that Brazil is growing and there are many multinationals coming to Brazil.

19. CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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 meets cl.500.212(a).

21. Clause 500.212(a) 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

22. 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.

23. 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.

24. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

25. While the applicant arrived in Australia on a tourist visa and changed her intention to study in Australia after her arrival, the Tribunal is satisfied from her evidence that she is credible that she saw an opportunity to study English in Australia and stay with her uncle. The Tribunal views her positive study record as persuasive that she is a genuine student. The Tribunal views as indicative of a genuine student that she has completed all three English courses with an attendance rate of 93%. In total she has paid over $13,000 to study in Australia and was able to provide detailed knowledge as to her current business course. 

26. The Tribunal accepts she is currently studying, attending the course and achieving course progression. It accepts she is genuine in her evidence that she wishes to achieve the English and business courses for the reasons she claims. On the totality of the evidence, the Tribunal is satisfied that the applicant is committed to study in Australia so she can improve his employment and career opportunities when she returns to Brazil.

27. The Tribunal finds the reasons as to why she wishes to continue to study the course she is enrolled in as credible. The Tribunal finds the applicant’s current enrolment and future plans supportive of her claim that she sees Australia as a temporary location in which to study. She gave evidence that she will depart Australia on completion of the business courses.

28. The Tribunal accepts that the balance of her family resides in Brazil. While her uncle is in Australia, it accepts her parents and sibling are in Brazil and she will not stay as her father is old and not well. Further, while her husband is with her in Australia he is also on a temporary visa. There is no adverse immigration record. There is no evidence of military service commitments or political and civil unrest In Nepal which would present as a significant incentive for the applicant not to return to his home country.

29. 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).

30. 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.

    DECISION

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

    Gabrielle Cullen
    Member