Custodio Lopes (Migration)

Custodio Lopes (Migration) [2021] AATA 1089 (12 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ricardo Custodio Lopes
CASE NUMBER:  1921852
HOME AFFAIRS REFERENCE(S):          BCC2019/3432532
MEMBER:D Triaca
DATE:12 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 April 2021 at 11:47am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study and work history in home country and Australia – enrolment at lower levels than previous highest study – value of courses to applicant’s future – partner relationship in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
CASES
Singh [2019] (Migration) AATA 2993
Vu Vu (Migration) [2019] AATA 5740
Vu Vu v Minister for Immigration [2020] FCCA 2292
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 July 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 July 2019. 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.
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 Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
This is made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’
Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in accordance with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]
[1] See Singh [2019] (Migration) AATA 2993 at [13]
[2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292
The issues in this case arose in the following circumstances, the applicant is a 33 year old citizen of Brazil. He first arrived in Australia on 9 September 2017. He has resided here since that time on temporary and associated bridging visas. On 9 July 2019 he applied for a student visa. On 31 July 2019 a delegate of the Department refused his application (delegate’s decision). He subsequently applied to the tribunal for a review of the delegate’s decision and he provided the tribunal with a copy of that decision.
The tribunal has concluded that the decision to refuse the applicant a student visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:
(a)The delegate’s decision record;
(b)The applicant’s original written visa application;
(c)The oral evidence and arguments of the applicant presented at the hearing;
(d)All written material filed by or on behalf of the applicant in relation to this case;
(e)Other relevant documents on the Tribunal and Department files;
(f)Written response to the Tribunal’s invitation to provide further information pursuant to s.359(2) of the Act (359 Response).
The applicant’s academic background in Brazil is set out in his 359 Response. He studied Administration Technician in 2007 and 2008. In 2009 he commenced a Bachelor of Business Administration at University of Taubate which he completed in December 2012. He commenced studying a further degree in Civil Engineering in 2013 but did not completed it as he received a work promotion at the time.
His employment history is also well set out in that document. He worked in various jobs in Brazil. He worked as a Pizza Waiter in 2007. He says he also undertook a year of mandatory military service. He worked as a trainee administrator in 2009 at an Industrial Ceramics business. He then worked in the Banking Industry, initially as a Banking Technician Apprentice before working at the Santander Bank, where he was ultimately promoted to Business Relationship Manager.
Since arriving in Australia, the applicant has undertaken a series of General English courses between 2017 and most recently completed in June 2019. He completed a Certificate II in Business in January 2020 and a Certificate III in Business in September 2020. He recently commenced a Certificate IV in Customer Service Engagement and is also enrolled in a Diploma of Leadership and Management (together, the proposed studies). If he completed both courses on schedule it would be in about July 2023.
Having regard to the applicant’s evidence, it is difficult to see how the proposed studies offer any real value to his future. His plans in relation to his return home are vague and non-specific. He said that he has seven years work experience working in a Spanish bank in the finance side. He will return to the Bank. He says he may work in import / export. In his 359 Response he raised the prospect of ‘opening my own business.’ It was very difficult to ascertain how the proposed studies were likely to assist the applicant in such pursuits, in circumstances in which he seems well qualified to pursue employment in the Bank irrespective of completing further Australian qualifications at this level. I consider that if the applicant wishes to open his own business, then his previously obtained Certificates II and III in Business will assist him in doing so.
His evidence set out a generic understanding of the various benefits of the proposed studies, including the importance of customer service and leadership. The difficulty for the applicant is that it appears that the skills and knowledge that he is seeking to acquire by the proposed studies are ones that he should already have, given his previous education and work experience. In this regard I note his evidence was that in Brazil he had 700 clients at the bank ranging from corporate to individuals. He worked there for 7 years and ‘yielded good results for me financially,’ suggests that the applicant is well qualified to return home to Brazil and find similar employment. I accept that he may wish to return at a higher level, and he has suggested other roles he could attain. However, he has not demonstrated how the proposed studies are likely to assist him do so. Considering all his evidence, I do not accept that a person with 7 years banking work experience, including working as a business relationship manager and a degree in Business Administration and Certificate II and III in Business, requires further training in customer service, or leadership and management, in order to advance their career. In the circumstances I do not consider the current or proposed study is likely to improve the applicant’s prospects of employment in his home country or a third country. It follows that I do not consider successfully completing these courses will increase his remuneration upon his return.
Further, I consider that the applicant’s previous university level study is at a level higher than his proposed study. I consider that the applicant’s university degree is designed to equip the student with skills and knowledge of a similar nature to the applicant’s current and proposed study, and I do not consider these courses to be consistent with the applicant’s level of education.
Further, from the applicant’s evidence, it appears that his primary motivation for studying in Australia was a perceived need to improve his English language skills. I accept this was a reasonable for him to seek to do so in an English-speaking country. However, he has now had the opportunity of completing English language courses in Australia over a two year period and has also had the benefit of living in an English speaking country. The tribunal considers that if the applicant requires further tuition in the English-language he can adequately continue his studies in his home country or in an online environment.
There is no evidence in relation to the applicant’s circumstances in his home country relative to others there.
I accept that the applicant has a preference to study in Australia, following his study in Brazil. He seems to have a good understanding of living in Australia and the Australian curriculum. This is not surprising as he has resided here for some time. He has a good understanding of his course provider, which is to be expected given that he has successfully completed two certificate courses with that provider. His stated a number of benefits that led him to prefer studying in Australia. I accept it was reasonable for him to seek to further his education here. I do no consider, however, that it is reasonable for him to do so in lower level courses. I also do not accept that here is ongoing benefit to studying in an “English-speaking’ environment now he has had the benefit of doing so for over 3 years and has completed a number of English language courses.
The applicant states, and the Tribunal accepts that he has no concerns in relation to political or civil unrest in his home country. He says that the ‘only concern’ he has in relation to returning home to Brazil is the COVID-19 pandemic. I accept that he is concerned by this situation. However, the COVID-19 pandemic is a concern for many, if not most international students. I do not consider that this concern creates a situation whereby the applicant ought to remain in Australia for the purpose of studying courses without any apparent value to his future.
The applicant states, and the Tribunal accepts, that he has no concerns in relation to military service commitments in his home country.
The applicant’s family is stated to be his parents and siblings, resident in Brazil. He says he is close to his family and keeps in touch with them. I accept this evidence. However, in circumstances in which he has returned to Brazil only once since he first arrived here, and is seeking to further extend his stay here, he appears to be managing his family relationships from Australia. I do not consider the evidence suggests his family ties to Brazil are operating as a significant incentive for him to return home.
I consider the presence of the applicant’s ‘partner Giovana’[3] constitutes a tie to Australia that operates as a strong incentive for him to remain here at present. In his oral evidence he said that he had ‘fallen in love with a Brazilian girl’ whilst in Australia. In his 359 Response he stated that ‘it will be a huge emotional burden for her to have to stay here away from her family without my company, in case I am unsuccessful in this appeal.’ I consider it likely that his relationship, and a wish to support his partner, operates as a strong incentive for him to remain here. This weighs against the application.
[3] 359 Response
There is no specific evidence the applicant has ties to Australia that operate as a strong incentive to remain here. Whilst the applicant did suggest in evidence that he had ‘fallen in love a Brazilian girl’ whilst in Australia, and in his 359 Response he refers to his ‘partner Giovana’ a Brazilian student, studying in Australia, the tribunal does not consider the evidence of this relationship suggests that it is operating as a strong incentive for the applicant to remain in Australia and I place no weight on this matter.
The applicant has worked in Australia since 2017 in roles such as a cleaner, dishwasher, food delivery and Uber Driver. He says that he earns approximately $27,662 per annum AUD. He states that this roughly equates to his annual expenses in Australia. Whilst the applicant works in Australia, it does not seem that the financial benefit of working in relatively low paying employment is a significant inventive for him to remain in Australia. In his 359 Response he listed shares and a fixed income investment in Brazil and a motor vehicle in Brisbane as additional assets. He also said that he is a creditor in a legal process in Brazil, which has an approximate value of $186,215AUD. I do not consider any of these additional matters is likely to operate as an incentive for the applicant to remain in Australia or return home.
Whilst I do not consider the evidence in relation to the applicant’s economic circumstances constitutes a significant incentive for him to remain in Australia, I do place some weight on the fact that the applicant appears well settled in Australia and seems to enjoy living here. In this regard I consider the applicant can clearly find regular employment in Australia and has the capacity to earn Australian dollars in the course of ordinary employment. I consider these matters contribute to a general reluctance to leave Australia.
The applicant has travelled between Australia and Brazil without any issues. He appears to have complied with the requirements of his visas since arriving here. I make no adverse findings in relation to his travel or immigration history.
There do not appear to be any other matters relevant to the application.
I have considered all the evidence before the tribunal. I do not consider the applicant to be a genuine applicant. I find that the applicant’s application for a student visa is motivated by reasons other than study as I do not accept that his current and proposed further study offers any real value to his future. He has not demonstrated the benefits of undertaking study in Australia at lower levels than his previous study in Brazil, nor has he demonstrated how these vocational level courses assist his career progression in circumstances in which he has significant work experience in addition to his higher level education.
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).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
D Triaca
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.
4.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.
5.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
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.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
9.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.
10.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
11.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
12.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
13.An applicant’s immigration history refers both to their visa and travel history.
14.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
15.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
16.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.

[2021] AATA 1089

12 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction