DE OLIVEIRA MONTEIRO (Migration)

[2018] AATA 859

DE OLIVEIRA MONTEIRO (Migration) [2018] AATA 859 (12 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Claudino DE OLIVEIRA MONTEIRO

CASE NUMBER:  1618479

DIBP REFERENCE(S):  BCC2016/3350597

MEMBER:Penelope Hunter

DATE:12 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 February 2018 at 4:00pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Level of attendance – Medical issues – Limited knowledge of courses – Relevance to employment prospects – No residence in home country

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 on 24 October 2016 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 10 October 2016. 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 cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

4. The applicant appeared before the Tribunal on 24 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s niece, Cristiana Andreia Monteiro. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

6. The applicant is a 53-year-old citizen of Portugal.

7. He arrived in Australia on a tourist visa on 17 September 2016. In his visa application under review he stated that he was retired.

8. The applicant applied the visa in order to undertake an English language course with course dates from 7 November 2016 to 4 May 2018. In his application the applicant set out that he needed the course to improve his English skills. He wished to have the ability to speak, write and understand English and have fluency. He chose to study in Australia because he could study in a different language rather than Portuguese and that Australia was recognised for its high quality of educational institutions. Once he received his proficiency in English he could return to work and have a better job in his home country. He claimed that English fluency was very important to have better opportunities in Portugal and it would assist him to better jobs in Europe in the future. After he completed his proposed studies he intended to return to Europe.

9. At the hearing the applicant did not have a copy of his current Confirmation of Enrolment, or any evidence of previous course completion, despite being requested to provide such evidence prior to the Tribunal hearing. The applicant provided a letter from Wenjia Zhou dated 22 January 2018, this confirms his enrolment between 21 August 2017 to 8 December 2017.

10. The applicant claimed that he was still attending an English course, and would resume lessons the following week due to the Christmas vacation. He did not know the name or the level of his course and suggested it might be 2.

11. When he finishes his current courses he intended to get into another course to keep studying so he could be near his family as they help a lot.

12. He told the Tribunal that he wanted to study in Australia as he wanted to stay in the country a little longer He was in a complicated situation in his home country as he became a widower and took refuge in alcohol. His siblings brought him to Australia to help him. He intended to stay in Australia another couple of years. He did not think that he would stay indefinitely. His family was supporting him financially in Australia. He had a brother  and sister who lived in Australia.

13. He was finally facing his alcohol problems but had not engaged in any treatment. It was good to stay in Australia because he did not remember alcohol as much.

14. He had no current residence in Portugal, his wife having passed 6 years earlier. He had 3 daughters and two grandchildren. He had recently returned to Portugal to visit them. He last worked a few years ago in Portugal in the building industry.

15. Miss Monteiro told the Tribunal that his education provider had raised in the past issues with the applicant’s attendance, but they had medical certificates available that explained his circumstances.

    CONSIDERATION AND REASONS

16. 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.

17. 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?

18. 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.

19. 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.

20. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

21. The Tribunal is not satisfied that the applicant has a genuine interest in study. His evidence was that he applied for the visa to extend his stay onshore. The Tribunal has considered the letter provided by Wenjia Zhou and accepts that the applicant was enrolled in study between 21 August 2017 and 8 December 2017. He has not provided any evidence to the Tribunal of his current enrolment of the payment of fees. The evidence at the hearing, together with the letter of Wenjia Zhou that he usually came to class on time, also caused the Tribunal to have concerns about his level of attendance and how much his medical issues were impacting upon his study.  In his evidence to the Tribunal he appeared to have limited knowledge of the courses that he was undertaking and aside from giving him the benefit of understanding English, they appeared to have limited relevance to his future career or employment prospects. The applicant had not worked for a number of years, and then in construction, he claimed that he may have to work to support himself if he returned to Portugal however he was only able to provide generic evidence as to how his courses may assist him in the future. On his evidence, it appeared that the applicant was using the student visa program to circumvent the intentions of the migration program.

22. As to the applicant’s circumstances in Australia, he has travelled to Australia with the support of his family to address his alcohol problem. He has a brother and sister in Australia, and their families, who are supporting him personally and financially with his day to day needs. His children and other siblings are also assisting him financially to remain in Australia which he intends to do for the reasonably foreseeable future. The clear evidence of the applicant was that he was remaining in Australia for reasons other than a genuine interest in study and career advancement.

23. Although the applicant claims he will return to Portugal one day, it was clear from his evidence he had no immediate intentions. He does not have any residence to return to, nor does he have any property or assets. He has not worked for several years and although he has children, grandchildren and other siblings in Portugal, it appears to be the preference of the family that he remain in Australia. The Tribunal is not satisfied from his circumstances overall that the applicant has significant incentive to return to his home country.

24. The considerations set out above lead the Tribunal to not be satisfied that he is genuine in his reasons for studying in Australia and why he wishes to undertake his proposed courses.

25. 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).

26. 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

27. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Penelope Hunter
    Member