Domingos (Migration)

Domingos (Migration) [2022] AATA 4606 (18 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Felippe Domingos
REPRESENTATIVE:  Mr Sergio Zanotti Stagliorio
CASE NUMBER:  2113320
HOME AFFAIRS REFERENCE(S):          BCC2017/3354740
MEMBER:Gabrielle Cullen
DATE:18 October 2022
PLACE OF DECISION:  Sydney
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 18 October 2022 at 11:54am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay in Australia as a student – applicant was able to give detailed evidence as to the value of this course to his future – genuine student and genuine temporary entrant – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.212
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 Immigration and Border Protection on 15 December 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 September 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.
The applicant arrived in Australia on a student visa 2 March 2017 with his ex-wife, valid to 19 September 2017. On 14 September 2017 the applicant again applied for a visa which is the application to which this decision relates. The applicant has departed Australia on 2 occasions from 27 July 2018 to 28 August 2018 and 21 August 2019 to 21 September 2019.
The applicant is no longer in a relationship with his ex-wife and she did not apply for review to the Court.
Confirmation of Enrolments (CoEs) attached to the application for the visa refer to the applicant studying a Certificate IV in Commercial Cookery and Diploma of Hospitality Management from 22 January 2019 to 23 February 2020. He has successfully completed these courses. He has then enrolled in and successfully completed an Advanced Diploma of Hospitality Management and General English course from 6 April 2020 to 4 April 2021. He was enrolled in a Certificate IV in Patisserie commenced 5 July 2021 and due to finish on 3 July 2022, at the time of the hearing and has now successfully completed this course. He is currently enrolled in a Graduate Diploma of Management (Learning) from 29 August 2022 to 25 August 2024.
Prior to the application for the visa, he successfully completed English courses from 6 March 2017 to 1 December 2017.
In his application for the visa the applicant indicated his parents and sister reside in Brazil, he previously completed a Bachelor of Business Administration in Brazil, was previously employed as a consultant from 2012 to 2017 in Brazil. He also provided evidence of health insurance to 18 May 2020 and his financial statement from August 2016 to July 2017.
The applicant also provided a statement detailing his academic background and future plans, confirming he gradated in a Bachelor of Business Administration, and he studied English when he first came to Australia as his former employment in Brazil was in the environment area where there were many books in English about the environment. He indicated he now wants to study the Certificate IV in Commercial Cookery and Diploma of Hospitality Management to practice his English skills and learn cooking as it has always been a hobby for him. He refers to undertaking a basic French course in 2016. He refers to always loving cooking and that is why he wants to join his hobby and learning English together. He outlines why he chose the current provider and why he wants his wife to join him.
The applicant’s ex-wife also provided a statement outlining her study history, family connections to Brazil and that she is supporting her husband to study. Sher refers to them owning a house in Brazil.
The delegate decided to refuse to grant the visa on 15 December 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned that the applicant’s spouse was part of the application, he completed a Bachelor of Business Administration in Brazil in 2006 and was employed in consulting in Brazil from March 2012. The delegate was concerned as to his limited ties in Brazil with only his parents in Brazil and that his evidence as to why he is now studying the Certificate Iv in Commercial Cookery and Diploma of Hospitality was limited as to its value to his future
On 5 January 2018 the applicant together with his ex-wife applied to the Tribunal for review of the decision and attached the decision of the Department.
He also provided a statement dated 4 January 2018 addressing the Department decision and providing the following additional information addressing the genuine temporary entrant criteria.
·He chose the courses in gastronomy as he wants another qualification to return to Brazil to work in that area to follow his passion. He notes that the qualifications enrolled in provide a pathway to work in various kitchens, restaurants, hotels, clubs, pubs, coffee shops and to open his own restaurant, start a food truck or create a catering company or to do something in the culinary world. He refers to the large number of options for his future career in this area in Brazil. He submits that becoming a chef requires dedication and hard work and it is the right time to change his career as he has the maturity to do so.
·Based on the idea of changing his career he wants to open his own restaurant in his hometown.
·He submits to make this plan come to fruition he needs to study the courses.
·He outlines how he chose his current education provider and what he will learn in the Certificate IV in Commercial Cookery.
·He indicates he will need to study the Diploma of Hospitality Management to give him sound knowledge to coordinate the hospitality operations and outlines what he will learn in this course.
·He outlines why he wishes to study these courses in Australia rather than Brazil and refers to the quality and that the big Chefs in Brazil have overseas qualifications.
·He also refers to the importance of learning English for both, he, and his wife for their future.
·He notes his wife has a General Social Welfare Policy Government Pension which is an incentive to return.
·They own a house in Brazil and continue to pay the bills.
·He owns a car in Brazil that they have chosen not to sell as he knows they are returning
·He refers to the growing Brazil economy and the opportunities on return.
·He also refers to remaining available for military service commitments due to Brazilian law as the law enables them to request him to do military service until he is 45.
·He refers to his wife being attached to her mother who lives in Brazil.
·the applicant notes at page 7 ‘[t]he only thing I really want is the opportunity to finalize the cookery course’ and again, later, at page 10 states ‘I… want to stay in Australia just until I finished my course in cookery’.
He also provided the following documents
·Internet research of market profile for exports market to Brazil.
·Military service law – Decree law No. 1, 187, April 4, 1939.
·Wikipedia search of Sao Paulo, his home area.
·Course information for the Diploma of Hospitality Management and Certificate IV in Commercial Cookery at Canterbury Technical Institute.
·Internet article extracted on 4/1/18 titled, ‘Brazil is back on track’.
·Ministers for the Department of Education and Training media release dated 29/02/16: ‘Record number of international students choose Australia
·Copy of English Translation of applicant’s bank statement for period 08/2016 to 07/2017.
·English translation of his ex-wife’s Investments/detailed position as at 16/02/18 and her Social Security Statement of Calculation Simulation by Contribution Period
On 11 June 2019 the Tribunal wrote to the applicant a s.359(2) letter as follows.
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information from which you can access by clicking on the link below.
The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.
On 25 June 2019 the applicant provided a completed Request for Student Visa Information form, where he consented to a decision to be made without a hearing. He provided the following additional evidence relevant to the genuine temporary entrant criteria
·He visited his family in Brazil in July/August 2018
·He currently works in Australia as a cook
·As to his future employment plans
Once I complete the course and achieve more experience as a chef I am planning to open my own restaurant in my hometown where is growing due to a large number of ceramic factory’s. This days there is a lot of foreign and visitors in a city and the demand of restaurant still no enough.
He also provided the documents previously provided and evidence of enrolment and studying the Certificate Iv in Commercial Cookery and Diploma of Hospitality Management and documents relating to the secondary applicant’s investments and pension and his applicant’s bank statement for period 08/2016 to 07/2017. He also provided a cost comparison of completing the courses in Brazil versus Australia.
On 5 September 2019 the Tribunal (differently constituted) affirmed the decision of the Department on the basis because the applicant is not a genuine applicant for entry and stay as a student and therefore did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Only the applicant applied for review to the Court as the applicant and his ex-wife were no longer in a relationship.
On 26 August 2021 the Federal Circuit Court ordered the Tribunal to redetermine the matter according to the law. The Federal Circuit Court found that it was not open to the Tribunal on the evidence before it to conclude that the surplus funds held by the applicant supported its finding that “the applicants’ economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return”. The Court was of the view that the Tribunal made an unreasonable finding that the applicant’s economic circumstances presented a ‘significant incentive’ for him not to return to Brazil.
On 8 June 2022 the Tribunal wrote to the applicant via his representative and invited him to attend a hearing on 24 June 2022.
On 17 June 2022, applicant sent an email with attached submission dated 17 June 2022 from his representative and the below statement with annexures.
He provided the following statement
I have arrived in Australia/ Brisbane in 02/03/2017 to study General English at Shafston College (Attachment 2/11) spending 5 months of full-time studies, where I could learn the language and from there making a decision of taking my studies further with the Preparation for Cambridge First Certificate (Attachment 3/3.1) from 11/09/2017 till 01/12/2017.
On the 22/01/2018 I started the Certificate IV in Commercial Cookery at the Canterbury Technical Institute as a decision made for my future plan to become a qualified chef internationally. The qualification brought me to an environment where I learned about the differences of industry in Australia based on a European kitchen technique. The knowledge achieved proved me that no other qualification in Brazil would supply the number of subjects and information included in the course here in Australia considering the mixture and influences of Asian and European cuisines. Where the school provides training and strategy such as all the 31 unit included in all Certificate IV in Commercial Cookery (Attachment 4/ 4.1/ 4.2). The course was completed on the 21/07/2019.
On the 26/08/2019 for the reason related on a better understanding and exploring the theorical concept and standards of the Hospitality Industry now a days, I combined the Diploma of Hospitality Management SIT50416 (Attachment 5/ 5.1/ 5.2) with my Certificate IV on Commercial Cookery. Where I could learn all the process of customer service practices, special requirements on a very demanding dietary meals now a days and research and comply with regulatory requirements. The course had added relevant facts on my career as chef and I gain knowledge to develop skills to sort problems that may occurred on a workplace such as shortage of supplies, dealing with staff, chefs and managers. I have also improved my abilities to develop new menus with new ideas using local and native products, managing the available produces for each season of the year and weather conditions and gave me a better understanding how to improve the customer service system in Brazil. How I could implement new forms of approaching customers and dealing solving problems with customers. The Diploma of Hospitality ended on the 23/02/2020. After the course in Diploma of hospitality I realised how this subject is fundamental to my career as a Chef and future restaurant owner. To improve my skills and abilities to deal with customers, colleagues, employers, patrons, regulations and others requirements related to hospitality business enterprise I decided to take further studies.
On the 06/04/2020 I continued my studies adding the Advanced Diploma of Hospitality Management SIT60316 (Attachment 6 /6.1). Where continue learning about how properly manage restaurant finances in a daily restaurant basics, how to manage restaurant physical assets, how to depreciate assets and plan new acquisitions according to the current budget. I put in practice restaurant operational daily activities include staff roster, purchasing goods, utensil and assets, managing opening and closing cashier, developing operational policies and procedures to stablish and maintain health and safety system. With The Advanced Diploma of Hospitality Management course that gave me support to better understand how to manage Hospitality business and how to be able to develop policies and procedures for future restaurants, creating a newer standards and sources to sort problems. The Advanced Diploma of Hospitality Management ended on the 04/04/2021.
On the 19/04/2021 I started the 6 weeks of General English (Attachment 7), due to Covid-19 pandemic and the school's lack of students for my next course in regard to my qualification as a chef. My application for Certificate IV in Patisserie was postponed for a few weeks and I had to wait till the beginning date which had been a few weeks studying and refreshing my English.
On the 15/06/2021 the course chosen in addition to continue add my career as a chef was Certificate IV in Patisserie (Attachment 8). As I felt working in the industry that I still had an amount of skill that needed to be include in my professional career. Felling that I was incomplete as I had never faced Pastry kitchen before. The Course have been preparing me for all another level of knowledge and opening my mind for a new business ideas and projects. That also add new qualifications on my portfolio CV. Certificate IV in Patisserie qualification includes a vary of practices that on the Certificate IV in Commercial Cookery do not include. The Patisserie Course qualification and training teaches specifics techniques and presentation for a dessert menu that I haven't seen before. Such as producing sweet buffet showpieces, produce chocolate confectionery, sugar base decorations and includes bakery products also. The Certificate IV in Patisserie still on going and will be ending on the 03/07/2022. As the school was closed for a time because of covid and flood in Queensland I got another COE.
On the 29/08/2022 the Graduate Diploma of Management (Attachment 9) will commence in addition to finalise and to get a higher qualification in Australia I will continue to the Graduate Diploma in Management. The qualification will reflect the role of my individuality which it will apply generating and evaluating complex ideas, where I will be able to find specific sources to build and create my business. The subjects are designed to give me full responsibility and accountability for the personal output and work with others. Also, how to manage financial strategy and the most important managing organisational marketing process. I will also learn the latest methods and new platforms of managing and promoting a business. My focus will direct to have appropriate qualification and learn about the new platforms in demands a such as social media and a vary new forms of e-commerce. I truly believe that I will have great opportunities in Brazil opening my own business or working in any field related in Hospitality or customer service back home.
Since I started the Certificate IV in Commercial Cookery I've been working as a cook, chef, pizza chef and I still searching for new information, new techniques such as pastry/breads, and new ideas to deal with any issue that may occurred on the way in kitchen while I am in a working. I am convince that all my studies and continuing studying will absolutely level my chances of jobs in a competitive field, specialty being a few years abroad from my home country. New ideas and new projects will stand up. I am also looking forward to show all my friends and family everything that I learned and cook for them. Last time that I travelled to Brazil in 2019 it was already a very nice experience cooking pizza with my niece. It gets me very excited to try new ways to cook Brazilian food where now a days I can imagine create a lot of different dishes with new techniques using the amazing fruits and vegetables available in the markets.
My studies here will help me work as a chef when I return to Brazil and open my own restaurant there. The quality of the education and subject included in each course differ comparable within I would study in Brazil. The most well known chefs in Brazil are in fact qualified by schools overseas. Also, the price of vocational course here in Australia is relative cheaper compared to Brazil (Attachment 10 - my declaration to Tribunal in the past for my previous appeal)
The ties that I have in Brazil still and always will be my family that live in Santa Gertrudes, small city out of Sao Paulo. The city that I grew up and always lived. It is where my sister Mariana is raising my niece and nephew. The city where my family lives and where I am planning to start my business so I can stay close to my parents and my sister's family. The city where I can see several opportunities to develop and create with local products. Lots of people from around the world comes and go daily for business and as a pleasure traveling around the beautiful countryside.
Santa Gertrudes is a largest ceramic pole in the Americas, with the largest region of ceramics in Brazil. There are 48 industries responsible for 208 thousand jobs. So, there are many jobs opportunities in the region.
My parents are business owners of a ceramic pots and tile factory for more than 40 years ( and where I worked. l only changed jobs when I worked in a transport sector which still a family business owned by my Uncle Luiz Carlos Santana. Therefore, I still and continue very passionate for food even in that time and when I came to Australia, I realised how much I could learn about it. Seen the variety of different types of cuisine that is not available in Brazil even though there are infinity amount of resources (vegs, meat and fruits). I decided to follow my passion which is cooking and since that decision I've been accomplishing certifications as a chef and knowledge to manage of my business.
I've been in Australia genuinely as a student in the last 5 years and I visited my family twice in 2018 and 2019. My mum and dad are aging, and this circumstance is one important fact why I would like to spend more time with them as soon as I complete my studies. Also I love the idea to see my nephews growing up with me on them side.
I have a house in Brazil which is vacant (Attachments 12 and 16) valuing AU$30,000. My sister lives close by and takes care of the property on my behave. The house where I keep all my belongs since I left, the house that l customized build and decorated and have I have a very affectional attached. It's been closed for 5 years and I am still paying all the obligation bill as it comes. I still have a car that my parents have being using until I come back that worth AU$2,000 (Attachment 13). All my 3 banks accounts in Brazil still open and I still using (Attachment 14) with a total of AU$ 22,000 combined. I am confident that my savings will assist me as a started point to begin in my future plan.
As my plan is to open my own restaurant/catering and to start anew project I will search a place and local farmers where I would like to work with. And the Graduate Diploma of Management will accomplish a solid idea and show me what is the necessary measures to follow. Such as quoting supplies, marketing plan and help me with the financial plan.
I remain available to a military service commitments actives under the Brazilian Law. The military service in Brazil is until 45 years old and, in any circumstances, I would protect my family and my country. According to the Presidency of the Republic DECREE-LAW No.1,187, OF APRIL 4, 1939. Art 5 (Attachment 17). I am proud of my country Brazil and if necessary I will be honored to serve Brazil defence force. Brazil is not in war in present but if my country needs me I will be honor to serve. This is also significant incentive for me to return to Brazil when I finish my courses.

In addition to documents already provided he submitted evidence of completing the above -mentioned courses, evidence of property and car ownership, evidence of holding health insurance as well as the English translation of Bank statement from 31/12/20 to 31/12/21.
The applicant’s representative provided a submission outlining the courses he has completed and course to be undertake and submits the applicant’s study history shows progression and consistency of studies and are relevant to his future career aim of starting his own restaurant
He submitted that the applicant’s two trips to Brazil show ties to his family in Brazil and a significant incentive to return, especially as his parents are “aging”, not to mention that he is also attached to his nephews living in Brazil, whom he would like to see growing up. He also referred to property, money in various bank accounts and a car the applicant owns in Brazil and that he has kept his home in Brazil vacant while in Australia which is demonstrative of someone who does not intend to stay in Australia permanently. Otherwise, he submits the applicant would have been reasonably expected to rent out his house and make some profit from it. The same applies to his car in Brazil and money kept in multiple bank accounts in that country, showing his intention to return. He submits the applicant’s military service commitments do not present a significant incentive for him to stay in Australia permanently but present a significant incentive for him to return to Brazil and notes the applicant has travelled to other countries and has at all times complied with visa conditions.
The applicant appeared before the Tribunal by telephone on 24 June 2022 to give evidence and present arguments.
The applicant was assisted in relation to the review with an interpreter in the Portuguese and English languages. His representative attended the hearing. The applicant indicated he understood English but would like to respond in Portuguese. The Tribunal advised that at any time he did not understand he should advise so that the questions or concerns would be interpreted.
The Tribunal asked questions about his military commitments; and he confirmed all Brazilians are required to do military service up until the age of 45. He is 39. He advised that the law indicates that in times of war an when they need his services it is his duty. He said there is no need for service in other times; he said he only needs to serve when they need him and he is always ready to serve. He said it is not a requirement to undertake military service before the age of 45, rather that he is available to do such service until the age of 45 if requested. He said it is not that everyone has to undertake military service rather that he is available until the age of 45 and when the Government asks he must obey, such as in emergencies, war or natural causes. He said he had never been called up to serve in the military. The Tribunal raised with him that it had difficulty understanding how this acts as an incentive to return. He said it does not act as a disincentive for him. He said the reasons he mentioned the military service is to show he is a patriotic Brazilian citizen and always ready to defend the country when necessary. He said in his area he is not required to serve and waits to be called when necessary
The applicant confirmed with him his past studies and work history as outlined above, including that in 2006 he completed a Bachelor of Business Administration in 2006 and after graduation he worked with his parents in their ceramic’s business, then worked with his uncle in a transport company as a consultant administrator from 2012 and then he decided to study to become a Chef. He confirmed he undertook a short cooking course in 2016.
As to why he came to Australia to study in 2017; he said because he wanted an international experience and as Australia is well recognised. As to why he studied English; he said because nowadays information and research literature is in English so it is a fundamental tool to g forward in any research.
As to what his future career plan was in 2017 when he came; he said his plan was always to be a chef and open a restaurant in his city. The Tribunal asked him to confirm that was the plan when he came in 2017; he said when he first came his plan was to improve his English and then months after being here, he realised the Australian cooking courses are good for him to become a Chef and to become an international chef a vast amount of experience and vast amount of knowledge of cooking is needed. He submitted these studies he would not be able to pursue in Brazil.
He confirmed that when he applied for the visa to which this decision relates in September 2017 at that time he wanted to become a Chef and open a restaurant on return. The Tribunal raised as of concern that in his statement submitted with his application for the student visa it does not say that rather that he refers to studying to improve his English and as cooking is a hobby not that he wanted to study for his future career aim of opening a restaurant. In response, he apologised and said the time he wrote the letter his level of English was not sufficient and perhaps he did not write everything needed and his plan has always been to open a restaurant in his home city on return. He said his plan is to finish studies and return.
The Tribunal noted he had finished the Certificate IV in Commercial Cookery and Diploma of Hospitality Management in February 2020, then undertook an Advanced Diploma of Hospitality Management and a Certificate IV in Patisserie which he will complete on 3 July 2020. The Tribunal noted he had said he would depart on completion of the Diploma of Hospitality Management and asked why he had continued to stay and study. He outlined what he had learned in the Certificate IV and Diploma course and then said he realised he needs to go deeper as those teachings were introductory knowledge. He said he decided he wanted to study the Advanced Diploma course after speaking with College and professors as he needed further knowledge to open a restaurant including all the procedures, then after he finished that he saw there were certain activities needed relating to running a restaurant such as opening and closing and maintaining a registration, then realised as the information as introductory he needed specialisation to deal with desserts and he noted in the Certificate IV he did not deal with different chocolates and fermented products and that is important for a Chef. He said he realised he needed more special knowledge to open a restaurant. He said leaning English in Australia allowed him to learn about the things needed to be a chef, in the cooking classes he learned how to cook and in the hospitality courses he learned how to develop clients, develop special menus and daily activities necessary in the restaurant. He said all of that leads to specific knowledge to open a restaurant.
The Tribunal asked about his plans and research as to his aim to open a restaurant. He said he comes from Santa Gertrudis, and he said he has his parents, brother, brother-in-law, a niece and nephew, uncles, and aunties, and he has a house and, in his city, there is a ceramics industry which is well known in Latin America. He said it is a city full of opportunity with many tourists and that is where he wants to open his restaurant. He said he already had a location and configuration. The Tribunal asked for further detail, and whether he has land. He said he doesn’t have the land but his uncle has a building in the middle of the city to open a restaurant and they have a plan. He said it will be called Fair Adon and it will serve morning coffee, lunch and dinners, there will be 36 seats and the menus will be a mix of Brazilian and Italian because there are quite a lot of Italians working in the city. He said the menu is based on what he has learned in Australia. The Tribunal asked for further detail as to when he plans to open the restaurant and he said in 2 years’ time and he has money, his family will help him and he can take a loan. The Tribunal asked if he had a business plan; he said no but he had a draft and needs technical knowledge which he will obtain in the next course so he can develop the project and can gain more information asking for loan to bank.
The Tribunal noted he had enrolled to undertake a Graduate Diploma of Learning to 23 August 2024 to study to open his 36-seat restaurant and has had this plan for 5 years and now wants to stay an extra 2 years studying, being 7 years studying since he had the plan and the Tribunal raised concern as to his his length of time studying in Australia and concern as to why he now needs to undertake a further course. He said he needs the course and further experience as a chef to obtain further knowledge to have strategies to prepare a business plan. The Tribunal noted he has already completed a Bachelor of Business Administration in Brazil and raised with him it had difficulty understanding the relevance of the Graduate Diploma of Leaning to his future career aim. He said that course was done 16 years ago and he said he wants to find out about the innovations in the market and new technologies and that knowledge is needed to update what he had learned before so he can develop the plan to open the restaurant. The Tribunal referred to the Graduate Diploma of Learning he has enrolled in and raised of concern its relevance to his future career aim. The Tribunal asked whether he had researched the course and what he will learn in the course. He said he had talked to school directors and chefs and they have advised him to take the course and there is information about leadership and management, also the economic management and financial resources and all things that will give him knowledge to run the restaurant. As well he said the course teaches him how to deal with registrations and what to do with registrations. He said he needs that knowledge to develop the information already learned.
The Tribunal referred to the course he was enrolled in and that it appeared to have little to do with his future career aim and the reasons he is studying it. He said that course will teach him to deal with staff in business and how to mange the staff and it will also teach him how to deal economic needs and investments for the restaurant. The Tribunal raised with him that would have been learned in the Bachelor of Business Administration he previously studied. He said yes but he had never put that knowledge into practice.
The Tribunal raised as of concern the cost of studying and living in Australia and that it had difficulty understanding why he would study for 7 years in Australia. He said he wants to enrich his curriculum studying to improve as an international chef and he wants to return to Brazil where he has family. He said the Graduate Diploma costs $17,000.
The Tribunal raised with him the relevance of this course to his future career aim, the length of his stay in Australia studying for 7 years to open a restaurant and it raised its concern that he is using the student visa pathway to maintain residence rather that as a genuine student studying for the reasons he claims. He said he is not studying to maintain residence. He said this course is cheaper than in Brazil and it will be an international Diploma, which will be internationally recognised which would open the doors to his plan.
He said that if he wanted to stay he would have applied for a partner visa as his current partner is resident in Australia. He said he is now divorced form the previous applicant. He said he is in a relationship with an Australian citizen, living together. He said it is not his plan to apply for a partner visa at the moment. He said she is Brazilian and he wants to open a restaurant in Brazil. He said her parents live in Brazil and she wants to spend time with them. The Tribunal raised with him that having a partner who is a permanent resident in Australia may indicate he is not a temporary resident. He said that is not the case and he said his plan is to study to open a restaurant in Brazil and for her to spend time with his family.
He said the relationship started in 2019. The Tribunal raised with him that it seems he is staying to be with her as he ahd previously said he was going to depart after completing the Diploma of Hospitality Management. He said her family at the time was in Japan and they have now returned to Brazil and she wants to return to be with her family in Brazil , given that her father is 75 years old.
He confirmed he owns a car and house in brazil and he asked whether the divorce affected the ownership of the property. He answered in the negative.
As to his current work in Australia; he said he works in an Italian restaurant. He said he does dessert and pizzas and cooks. He said he started there in August 2017.
He said he had no civil or political issues which would act as a disincentive to return.
The Tribunal raised a number of concerns which where relevant are outlined below
The applicant’s representative said as to the applicant stating in his application that he was studying as he saw cooking as a hobby and he did not say he was opening a restaurant on return, he said that is reflective that circumstances change and plans change and that is what happened to him on arriving in Australia.
As to the partner in Australia he noted that the situation is different in this case as the applicant’s partner is a citizen of Brazil as well, she has understandable reasons to return, her parents are aging and they have returned and it does not act as an incentive to stay but an incentive to return as she wants to return to Brazil also to be with her family. He submitted if the applicant’s situation was to stay, he would have applied for a partner visa, and while he would have to satisfy Schedule 3, that is not insurmountable and possible. He referred Inderjit v Minister; 2019 FCAFC , paragraphs 37 to 39 that a person has an intention to return in the future is not contrary for the time being they are a temporary resident. He also added that the way businesses operate and advertise is different to 16 years ago and the Bachelor of Business is no longer that useful especially with such things as online marketing and has not learned skills necessary for an online world.
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. The issue in the present case is whether the applicant meets 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.
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.
As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Brazil. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return, rather the applicant has indicated he is willing and ready to undertake military service is required. It accepts his evidence as to why he chose and chooses to study in Australia and not Brazil, and the benefits of an Australian education on return to Brazil. The Tribunal accepts that he has close family ties in Brazil, including his parents who are aging and who he is responsible for taking care of. It also accepts he has a sister in Brazil. It accepts he owns property and a car in Brazil. It notes his evidence he has twice returned to visit his family in Brazil since his arrival in 2017. The Tribunal accepts that these circumstances in Brazil are indicative of a person who is only a temporary entrant who has an incentive to return to Brazil.
Of concern in relation to him being a temporary entrant is that he is a relationship with an Australian permanent resident. While he has not applied for a spouse visa and the applicant says it is his partner’s plan to return with him to Brazil on completion of his study, as she is a Brazilian citizen and her family have recently returned to live in Brazil, the Tribunal is of the view that the fact that he is in a relationship with an Australian permanent resident may be indicative of a person who is not a temporary entrant.
The Tribunal accepts that the applicant has been continuously enrolled and completing courses since his arrival in Australia in 2017 including English courses, a Certificate IV in Commercial Cookery, Diploma of Hospitality Management, Advanced Diploma of Hospitality Management as well as a Certificate IV in Patisserie to 3 July 2022. He is now enrolled in a Graduate Diploma of Management (Learning) from 29 August 2022 to 25 August 2024. The Tribunal accepts that he has been continuously enrolled, attending and successfully completing courses since the application for the visa and this is indicative of a genuine student.
The Tribunal also accepts that his studies in the cookery and hospitality area to July 2022 are consistent with his future career aim, to open a restaurant on return to Brazil. The Tribunal notes his current work at a restaurant is consistent with his area of study and future career aim. It accepts by studying in Australia he has also been able to gain the skills to benefit his career on return.
Of concern to the Tribunal, as outlined at hearing is why he has now enrolled in a Graduate Diploma of Management (Learning) and the value of this course to his future career aim. This is particularly so as he previously completed a Bachelor of Business Administration in Brazil, albeit 16 years ago. The applicant was able to give detailed evidence as to the value of this course to his future.

The applicant has repeatedly indicated that he will return to Brazil on completion of his study in February 2023. The Tribunal notes that no evidence has been presented that he will need to stay further in Australia to study for his future career aim following completion of the current course. Should he choose to do so and present a further application for a student visa or enrolment this would be of great concern and undermine his claims in this application and that he is a genuine temporary entrant.
While the Tribunal has concerns as to his why he has enrolled in the current course, based on the other factors that are indicative of a genuine student and genuine temporary entrant as well as the time it has taken to have his matter finally assessed, it is persuaded he is a genuine student and genuine temporary entrant.
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 meets cl.500.212(a).
The Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a).
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
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.
Gabrielle Cullen
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;
d.whether 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.

[2022] AATA 4606

18 October 2022

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