Degasperi (Migration)

[2017] AATA 2399

Degasperi (Migration) [2017] AATA 2399 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Martina Degasperi
Mr Jose Alejandro Becerra Nino

CASE NUMBER:  1608359

DIBP REFERENCE(S):  BCC2016/982190

MEMBER:Gabrielle Cullen

DATE:13 November 2017

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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 13 November 2017 at 10:06am

CATCHWORDS
Migration – Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector – Continuous enrolment – Achieved course progression – Contact with Consulate on advice to return – Balance of family resides in home country

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 8 March 2016. The delegate decided to refuse to grant the visas on 2 June 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. Movement records indicate that the first named applicant (the applicant) arrived in Australia on a subclass 417 working holiday visa on 18 November 2011 and was granted subsequent subclass 417 visas to 12 November 2012. On 12 November 2013 she was granted a subclass 572 visa to 15 March 2016. The applicants applied for further student visas on 8 March 2016.

4. Information before the Tribunal including Certificates and COEs indicate the applicant is currently enrolled in an Advanced Diploma of Interior Design to finish on 14 December 2017. Information from her education provider indicates she will graduate from this course on 22 November 2017.

5. In a decision dated 2 June 2016, the delegate assessed the applicant against the criteria for a Subclass 572 visa and found that the applicant did not provide the evidence required to demonstrate she is a genuine student as required by cl.570.223 of Schedule 2 to the Regulations. The delegate was concerned that the applicant had not showed sufficient evidence to show the value of the proposed Diploma of Interior Design and Advanced Diploma of Interior Design to her future. She was also concerned that the applicant had spent significant time in Australia.

6. The applicant has provided the following relevant documents to the Department and Tribunal as evidence he is a genuine applicant for entry and stay as a student.

   ·GTE statement submitted to the Department dated 25 February 2016 as to why she wishes to study interior design and other matters concerning the assessment of this criterion.

   ·Evidence she completed a Bachelor of Cultural Heritage in Italy.

   ·Evidence she has while in Australia successfully completed a Certificate III in Design Fundamentals in 2014, Certificate IV in Interior Design and a Diploma in Interior Design and Decoration in 2015/2016.

   ·Evidence she is currently enrolled and successfully completing an Advanced Diploma of Interior Design.

   ·Letter from Ms Munn, Lecturer, Interior Design and Decoration, TAFE WA indicating the applicant will graduate with an Advanced Diploma in Interior Design on 22 November 2017. The letter indicates that the applicant has been totally committed to her studies and produced work of an extremely high standard.

   ·Letters of support submitting that the applicant is a genuine, hardworking student from a friend, Harley Williams and Ms Fowell, Coordinator, Interior design, TAFE WA dated 12 May 2017. Ms Fowell writes that the applicant is a diligent, respectful, passionate and capable student.

   ·Evidence from the applicant’s education provider confirming payment of all fess for her courses including the current course due to finish in November 2017.

   ·Submission from her representative dated 9 June 2017.

   ·Letter of support from the applicant’s casual employer, Brika dated 2 May 2017.

   ·Email from the applicant to the Italian Consulate in Perth as to her wish to return to Italy at the end of her studies in 2017 and asking whether she can apply for a visa to Italy for her Columbian husband.

   ·Evidence the applicants reside together and have a joint tenancy agreement.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current proposed course of study, a Certificate IV in Business, the relevant subclass in this case is Subclass 572.

9. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

10. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

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

13. The evidence indicates that the applicant has continuously been enrolled since holding a student visa and since her current application for one, successfully completed all the courses enrolled in and achieved course progression. She has successfully completed a Certificate III in Design Fundamentals, Certificate IV in Interior Decoration, Diploma of Interior Design and Decoration and will graduate with an Advanced Diploma of Interior Design and Decoration at the end of November 2017. She has paid all fess towards the current course. She has provided references from the Coordinator of Interior Design and a Lecturer from TAFE WA, her education provider as to her diligent and passionate work as a student, achieving high standards. She has provided detailed and consistent information to both the Department and Tribunal as to the value of these courses to her future and her wish to return to Italy to be an Interior Designer.

14. It is the applicant’s evidence she, with her husband, will return to Italy after completion of the current course. There is evidence that she contacted the Italian Consulate in early 2017 to seek advice on what visa her Columbian husband can obtain as she wishes to return home after completing her studies.

15. 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.

16. The Tribunal accepts that the balance of her family resides in Italy, although her Columbian husband is with her in Australia. It accepts her reasons as to why she sees study in Australia as a better environment in which to improve her English. There is no adverse immigration record. There is no evidence of military service commitments or political and civil unrest in his home country which would present as a significant incentive for the applicant not to return to his home country.

17. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.572.223(1)(a).

    DECISION

18. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Gabrielle Cullen
    Member