de Macedo da Silva (Migration)

[2019] AATA 2012

de Macedo da Silva (Migration) [2019] AATA 2012 (22 May 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Mateus de Macedo da Silva

CASE NUMBER:  1726815

DIBP REFERENCE(S):  BCC2017/3743254

MEMBER:  Roger Maguire

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 May 2019 at 10:29 am (QLD time)

DATE OF WRITTEN RECORD:                11 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

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

Statement made on 11 June 2019 at 2:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – study gap of 11 months – error in PRISMS records – significant personal ties to home country – no strong incentive to remain in Australia – value of course – role in family business – improve employment prospects – decision under review remitted

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

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 October 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under section 65 of the Migration Act 1958 (the Act).

2. At the hearing on 22 May 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 12 October 2017. 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirement of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant did not intend to reside in Australia temporarily. The Tribunal had before it a copy of the delegate’s decision record dated 30 October 2017. The Tribunal also had access to the relevant file of the Department of Immigration and Border Protection.

5. The applicant appeared before the Tribunal on 22 May 2019 to give evidence and present arguments. For the following reasons the Tribunal has concluded that the decision under review should be set aside and remitted to the Minister for reconsideration.

   Consideration of claims and evidence

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by the applicant. The issue in the present case is whether the applicant is a genuine temporary entrant.

   Genuine applicant for entry and stay as a student

7. Clause 500.212 requires as follows. The applicant is a genuine applicant for entry to 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 the parents, legal guardians or spouse of the applicant; and

   (iv)any other relevant matter.

   (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 conditions of a visa previously held by the applicant (if any); and

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(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?

1. In considering whether the applicant satisfies clause 500.211(a) the Tribunal must have regard to Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ made under section 499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   (i)The applicant’s circumstances in their home country, potential circumstances in Australia, and; the value of the course to the applicant’s future;

   (ii)The applicant’s immigration history, including applications for an Australian visa or visas to other countries and previous travel to Australia or other countries;

   (iii)If the applicant is a minor the intentions of a parent, legal guardian or spouse of the applicant;

   (iv)Any other relevant matter provided by the applicant or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

2. 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.

3. The delegate’s decision record dated 30 October 2017 was before the Tribunal and a copy of it was provided to the Tribunal by the applicant. The Tribunal is not bound by the decision record but may have regard to it.

4. The decision record noted that the applicant arrived in Australia on 30 July 2016 as the holder of a Student (TU 570) visa. At the time of the current application the applicant had only completed an English language program for an international student course and had several enrolments cancelled. The applicant had a current enrolment in a Certificate IV in Design. In a genuine temporary entrant statement the applicant said that he had chosen to live in the Gold Coast because it is a well-planned city with a high quality of life and good courses. The applicant was planning to look after the marketing and administrative sector of his family company when he returns to Brazil.

5. PRISMS records before the delegate indicated that the applicant had been enrolled in a Diploma of Marketing and Communication from 6 February 2017 to 15 September 2017 but had not studied the course. This led the delegate to find that there was a gap in the applicant’s study of an 11-month period between 16 December 2016 and 13 November 2017 and that the applicant was in breach of condition 8202. This in turn led the delegate to find that the applicant might not be a genuine temporary entrant for the grant of a student visa and that the applicant may be using the student visa program as a means of maintaining residence in Australia.

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1. On 2 April 2019 the applicant was sent a letter requesting information regarding current enrolment in a registered course as well as information demonstrating that he is a genuine applicant for entry and stay as a student. On 12 April 2019 the applicant provided a response to the Tribunal. He later provided a number of documents supporting his claim. The Tribunal has considered all of the material provided by the applicant, which included a statutory declaration by him dated 15 May 2019.

2. It is clear from the material provided by the applicant that the delegate was unwittingly in error regarding the gap in the applicant’s studies. The applicant did, in fact, complete a Diploma of Marketing and Communication in September 2017 and his provider has confirmed that there had been an error in the entry of data into the PRISMS records. The applicant has since completed a Certificate IV in Design in October 2018 and commenced a Certificate IV in Photography and Photoimaging in March 2019 which is due for completion in December 2019.

   Applicant’s circumstances in his home country

3. The Tribunal asked the applicant if he has fears of military service commitments in his home country or political or civil unrest there and the applicant replied that he did not. The Tribunal asked the applicant why it is necessary for him to study photography in Australia rather than Brazil. The applicant said that he expected the hearing to occur earlier but as he had no hearing date he decided to enrol in another course. The applicant said that the vocational courses in Brazil are not that good due to government issues and corruption. In Australia he can challenge himself and continue to develop his skills.

4. The Tribunal asked the applicant when he is intending to return home. The applicant said he was planning to return earlier this year if this hearing had happened. He is now planning to return in December of this year after his current course finishes. The applicant has informed the Tribunal that his parents, brother and sister all continue to live in Brazil and that he saw them in September 2017 and stays in touch every day through Messenger and this helps him when he’s feeling lonely in Australia.

5. In Brazil the applicant has a dog, grandparents, a godmother and plenty of uncles and cousins living in the same city. The applicant said that he misses his family every day. The applicant has a musical family and he has practised music for over 15 years and plays a keyboard at church and community activities. The applicant plays a range of instruments, including piano, saxophone and violin. His brother also plays drums and his sister sings and his mother is a pianist. The applicant also produces music videos with family members and local musicians. The applicant said that he maintains community ties in Brazil through religious groups and a children’s choir in his community.

6. Prior to leaving Brazil the applicant attended Collegial Paulo Freire School, which was established and run by his parents who still own it. The school currently has 650 students. After finishing school the applicant worked in the family business while studying his Bachelor of Business. The family company continues to pay his superannuation even though he is in Australia. The applicant deferred the seventh and final semester of his business degree to come to Australia to study. The applicant has stated that he intends to complete this degree upon his return to Brazil. The Tribunal accepts the applicant’s evidence and finds that he has a significant incentive to return to his home country.

   The applicant’s circumstances in Australia

7. The applicant’s decision to study in Australia was prompted by the experience of his elder brother who returned to Brazil and works in the family business since completing his studies in Australia. The applicant has been working in Australia as a food and beverage attendant

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earning $18,000 per annum. The applicant has told the Tribunal that he is lonely in Australia and has no community ties. The applicant said that he has friends but nothing that would lead him to want to stay in Australia. The applicant said his ties in Brazil are much stronger than his ties to Australia. The Tribunal accepts the applicant’s evidence and finds that he has no strong incentive to remain in Australia.

The applicant’s immigration history

1. The applicant arrived in Australia on 30 July 2016 and appears to have used his time productively. As noted above, the decision of the delegate in this matter was based on an error in the PRISMS records. The Tribunal finds that at no time has the applicant failed to comply with visa terms. The applicant has a sound record of course completion.

2. There is no adverse evidence before the Tribunal regarding the applicant’s immigration history. The Tribunal finds that the applicant’s immigration history weighs in his favour.

   Value of the course to the applicant’s future

3. The Tribunal accepts the applicant’s evidence that the family business currently has to source photographic services and that the business will be able to save much more money once he assumes that role as part of his duties. The applicant’s choice of course appears consistent with his previous studies and stated career intentions. The Tribunal finds that the applicant’s current course will improve his employment prospects in his home country.

4. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets clause 500.212(a) and the decision of this Tribunal is to remit the application for a Student (Temporary) (Class TU) visa for reconsideration with the direction that the applicant meets the final criteria for a Subclass 500 (Student) visa; namely clause 500.212(a) of Schedule 2 to the Regulations.

   DECISION

   The Tribunal remits the decision under review with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

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

   Roger Maguire
   Member

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