De Almeida Gomes (Migration)

[2021] AATA 2962

De Almeida Gomes (Migration) [2021] AATA 2962 (27 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vitor Alexandre De Almeida Gomes

CASE NUMBER:  1913573

HOME AFFAIRS REFERENCE(S):          BCC2019/1218193

MEMBER:Jens Streit

DATE:27 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 27 June 2021 at 5:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to return to home country – offer of employment in father’s company – Certificate III in Carpentry – value of the course – changing study pathways – 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 Home Affairs on 14 May 2019 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 11 March 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intended a temporary stay in Australia as a student.

4. The applicant appeared before the Tribunal on 16 March 2020 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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?

10. 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.

11. 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.

12. At the time of lodging the application for review, the applicant provided the Tribunal with a copy of the delegate’s decision and record of reasons refusing to grant the visa.

13. In terms of the evidence, the Tribunal has had regard to the applicant’s oral testimony, the Departmental file, the Tribunal file and the documentation provided by the applicant to the Tribunal. The Tribunal has also considered the oral submissions made by the applicant’s representative.

14. The applicant is a 32-year-old Brazilian national. The applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form reflects the applicant completed a Bachelor of Business Administration in Brazil in December 2010 and had been employed on four occasions as an administrative trainee during the period August 2008 to September 2015.

15. The applicant arrived in Australia on 03 December 2015 and whilst the holder of student visas completed the following courses:

    ·General English (completed May 2016);

    ·Certificate III in Business (completed December 2016);

    ·Certificate IV in Accounting (completed December 2017); and

    ·Diploma of Accounting (completed December 2018).

16. On 11 March 2019, the applicant applied for Student (Temporary) (Class TU) Student (Subclass 500) visa to study a Certificate III in Carpentry.

17. In the period between the delegate’s decision and the hearing before the Tribunal, the applicant was enrolled in, or had successfully completed, the following courses:

    ·Preparation course for IELTS (completed March 2019); and

    ·Certificate III in Carpentry (studying).

18. In terms of the applicant’s circumstances in his home country, in response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant records his father, mother and brother live in Brazil and he last saw them in person in July 2018. The applicant contacts his family three times per week via Whatsapp.

19. The applicant records travelling home to visit family and friends in June 2018 for 30 days.

20. The applicant does not own any property in Brazil, save for a motor vehicle estimated at AU$8,000.

21. The applicant told the Tribunal he will initially live with his parents when he returns to live and work in Brazil. The applicant explains that his brother recently married and has moved out of the family home. 

22. The applicant does not have any concerns about military service commitments or political or civil unrest in Brazil.

23. In terms of applicant’s potential circumstances in Australia, the applicant rents a house with four other persons. The applicant does not have any family living in Australia.

24. In response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant records he was employed as a clearer in the period March 2016 to June 2018 earning AU$25,000 per annum. The applicant records being employed again as a cleaner commencing in August 2018 earing AU$25,000 per annum. During the hearing the applicant confirmed he remains employed as a cleaner.

25. The applicant records his living expenses in Australia amount to AU$22,200 per annum.

26. The applicant does not own any property in Australia. The evidence before the Tribunal reflects that the applicant receives financial support from his parents. The applicant told the Tribunal his father provides the main financial support for his stay in Australia.  

27. Having regard to the evidence and in particular the offer of employment in his father’s company, on balance the Tribunal considers the applicant’s circumstances in Brazil do provide an incentive for the applicant to return to work and live in Brazil, that outweighs the incentive for the applicant to remain living in Australia.

28. In terms of the value of studying a Certificate III in Carpentry to the applicant’s future, in response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant sets out in detail his reasons for changing study pathways. The applicant has also provided an extensive written submission with enclosures explaining his circumstances and the reasons for studying a Certificate III in Carpentry.

29. The applicant told the Tribunal he initially came to Australia to study English and then undertook accounting courses to improve his technical understanding of English. The applicant explained that his father has a construction company in Brazil. Upon returning to visit his family in 2018, the applicant stated he spoke to his father about how good the trade education system was in Australia.  The applicant explains his father is a draftsman and works with the applicant’s uncle, an engineer in the construction industry in Brazil.

30. After discussing with his father upcoming construction opportunities in Brazil, the applicant considered studying a Certificate III in Carpentry in Australia would provide him with skills he could utilise working in his father’s company in conjunction with his other courses qualifications in accounting.

31. Upon completion of the Certificate III in Carpentry, the applicant intends to return to Brazil and work in his father’s construction company. In this regard the Tribunal notes the applicant has provided evidence of a job offer from his father’s company to work as a construction supervisor upon completion of the Certificate III in Carpentry.

32. In response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant recorded his reasons for not undertaking the same or similar course of study in Brazil. In essence the applicant considers the standard of education in carpentry in Australia is higher than in Brazil.  

33. The documentary evidence before the Tribunal reflects the applicant has successfully completed all previous courses. The Tribunal notes a letter from the applicant’s education provider dated 29 November 2019, which reflects the applicant is performing very well in studying the Certificate III in Carpentry.

34. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant the contents of the Provider Registration International Student Management System (PRISMS) record database. The Tribunal provided the applicant with a copy of the PRISMS enrolment record. The Tribunal explained the consequences of relying upon the information. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant they may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing.

35. In response to the Tribunal’s concerns, the applicant stated to the effect he and his father had taken different paths and now he has an opportunity to work with his father, which is important to him. The applicant stated not completing the Certificate III in Carpentry now would be financially very difficult because of the money expended to undertake the course to date. The applicant stated he just wants to complete the course and return to Brazil and start working with his father.

36. The Tribunal accepts the applicant’s evidence that he will return to live and work in Brazil at the completion of studying the Certificate III in Carpentry.

37. The Tribunal recognises the importance of allowing for reasonable changes to career and study pathways. The applicant has provided an explanation for his change in study pathways.

38. In all the circumstances the Tribunal is satisfied as to the value of the applicant studying a Certificate III in Carpentry in relation to the applicant’s plans for his future.

39. The Tribunal has considered the applicant’s immigration history and notes the applicant has complied with his visa conditions.

    Conclusion

40. 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. Weighing up the above matters the Tribunal considers the applicant is not using the student visa program primarily to maintain ongoing residence Australia.

41. Having had regard to all matters, including as canvassed above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

42. 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

43. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    Jens Streit
    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.