Fioriolli (Migration)

[2019] AATA 2009

Fioriolli (Migration) [2019] AATA 2009 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thais Fioriolli
Mr Leonardo Linck Fischer

CASE NUMBER:  1729371

HOME AFFAIRS REFERENCE(S):           BCC2017/3551132

MEMBER:Meredith Jackson

DATE:17 June 2019

PLACE OF DECISION:  Brisbane

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

The second-named applicant to be reconsidered on the basis of the remit of the primary applicant.

Statement made on 17 June 2019 at 10:30am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – change in study and career path – tired of architecture – interested in hospitality – plans to open a café business in Brazil – detailed business plan for the venture – satisfactory academic performance – intention to live with family in home country – decision under review remitted

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 November 2017 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 for the visas on 28 September 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 the delegate intends genuinely to stay temporarily in Australia.

4.    The applicants appeared before the Tribunal on 29 May 2019 to give evidence and present arguments.

5.    The applicants were assisted in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

1. 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.

Case summary

1. The primary applicant (the applicant), Ms Thais Fioriolli is a 36 year old citizen of Italy, and citizen and resident of Brazil, who first came to Australia on a working holiday visa in March 2013. She was accompanied by the secondary applicant, Mr Leonardo Linck Fischer, a citizen of Brazil. The applicants married in Australia and have a child. Ms Fioriolli was granted student visas in 2014 and 2015. She applied for the visa under review on 28 September 2017. Ms Fioriolli holds a Bachelor of Architecture from Brazil and in Australia is enrolled in a Masters of Public Accounting and Masters of Business Administration until July 2020. She claims she and her husband will then return to Brazil and she will open a business with her father.

Written and oral evidence considered

1. The applicant submitted to the Tribunal ahead of the hearing documentary evidence including:

   a.The delegate’s decision;

   b.Personal submissions including a statutory declaration concerning her personal history, course progress, reasons for studying in Australia, future plans and reasons to depart Australia;

   c.Statutory declaration and identity documents from the applicant’s sponsor, her mother, outlining her financial support for the applicant and her future inheritances; statement from the secondary applicant’s grandmother;

   d.Financial statements of the sponsor;

   e.Academic transcripts and letters of support for the applicant from staff members of Holmes College Gold Coast, attesting to her performance as a student and the impact and management of the applicant’s pregnancy;

   f.Identity documents; birth certificate for the applicants’ infant child on 16 March 2018; registered relationship certificate (Queensland) for the applicants; marriage certificate;

   g.A detailed business plan for a cafeteria and bookstore in Brazil.

The hearing

1. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about her held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision.

2. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if she wished to seek further time to consider it. The applicant said she was prepared to comment on the information immediately after it was read to her and said she understood it and why it was relevant to her case. The applicant did not dispute the PRISMS record.

3. The record showed the applicant had started studying in October 2017, completed an IELTS preparatory course in December 2017 and then entered a Master of Professional Accounting (MPA) at Homes Institute in March 2018. The course was deferred due to her pregnancy with the applicant’s first child. The applicant resumed studying in July 2018 and she aims to complete the MPA in December. She claims she will then study a Master of Business Administration (MBA), at the same provider, which she aims to complete in July 2020.

4. The applicant claims she will return to Brazil after her MBA is finished in July 2020. She had arrived in Australia on a working holiday visa, while her partner had entered on a student visa to study English. Initially, she worked in hospitality and was granted student visas as a dependant. Once her partner’s studies were completed, she felt it was her turn to study, and she did not want to return to Brazil without attaining anything academically.

5. Her pregnancy symptoms disrupted her study in the MPA briefly, but she had stayed with her plan and resumed studying after the birth.

6. The reasons for her choice of study path were that her work in hospitality in Australia had sparked an interest in hospitality; and, her parents had encouraged her to gain relevant qualifications for opening a business, a café in her region of Brazil, with her father. Her father, she claims, is due to retire soon, and the family is excited about a new venture. Her architecture qualifications were no longer sufficient for her professionally. After five years, she claims she tired of architecture. Her prospective qualifications would be directly valuable to the new family enterprise. The business plan had been developed with her father, a management lecturer in a university in Brazil. Her parents would inject capital in the proposed business.

7. In response to the Tribunal’s concerns that the applicant might equally have been extending her stay in Australia to open a business here, the applicant stated that everything she had experienced working and studying in Australia would be applied to help her father in the new venture. While Australia might be an attractive possibility for many, she would not have her family’s support here, and now she had a family she did not want to be far from them. However it was important to her, and to her parents, that before returning, she accrue appropriate qualifications, namely the MPA and MBA. Opening a café business would not be an easy venture but she would have support from her family. Her partner, now her husband, would not have a role in the business but would work professionally in soccer and sports, as he does now on a voluntary basis in Australia.

8. The applicant stated she did not have family in Australia and had not applied for other visas in Australia or other countries.

9. The secondary applicant gave evidence to the effect that he was the primary carer of the parties’ young child. He had not studied for two years. The family was supported financially by the applicant’s parents, and by income from his delivery driving and by the applicant’s income from café work.

Conclusions

1. The Tribunal has considered the applicant’s submissions and has considered her circumstances in her home country, potential circumstances in Australia, and the value of the course to her future; has considered the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and travel to Australia or other countries; and has considered other relevant information provided by the applicant or otherwise available, including information that may be either beneficial or unfavourable to the applicant, in accordance with Direction 69. The Tribunal concludes the following.

2. The applicant’s first claim is that she is studying a package of of Master’s degrees, the MPA and the MBA, in order to gain qualifications relevant to her future in Brazil. The applicant has outlined a plan to establish a business with her father, a retiring management lecturer at a Brazilian university. The applicant has submitted to the Tribunal a detailed business plan for the venture. The Tribunal has examined the plan, and considers it to be of some credibility, and that her study path in Australia is consistent with its purpose. The Tribunal accepts the applicant’s claim that her study choices are relevant to her potential circumstances in Brazil.

3. The applicant’s second claim is that she has reasonably changed direction in her career since graduating with a degree in architecture, and that her prospective Master’s qualifications will be more useful to her in the future. She claims she worked five years in architecture in Brazil before tiring of it and coming to Australia for a working holiday. Her decision to switch fields to business was motivated by casual work in an Australian café, which had sparked her interest in creating something similar in her home country. The Tribunal notes the applicant has had cheaper and less demanding options open to her in Australia, but has chosen to build upon her existing level of attainment and study at Master’s level in Australia, albeit in a new field. The Tribunal is mindful that many professionals seek to acquire business qualifications over and above those they hold at undergraduate level, and concludes the applicant’s change of direction is reasonable in her circumstances.

4. The applicant’s third claim is that she has studied consistently, despite the need to seek a deferment while she dealt with pregnancy and childbirth. Her claims are supported by evidence from teaching staff at Holmes College (now Holmes Institute). The Tribunal notes the applicant’s study record as shown in PRISMS, and considers her academic performance adds credibility to her claims to be a diligent and genuine student. The Tribunal is satisfied that as the applicant properly sought deferment from her education provider for the reason that she was pregnant, her study record is sound.

5. The applicant’s fourth claim is that while she came to Australia on a working holiday visa and remained here to study two Master’s degrees, this was simply a practical pathway for a married couple who wished, in turn, to support each other’s studies and also start a family. The Tribunal has considered whether the applicant’s visa record implies that she and her husband are using the student visa program to extend their stay in Australia and might seek to stay beyond the completion of her studies. The Tribunal, in reaching a view on this, has taken into account the claims of the applicant and her husband that they are now parents, are missing their families, and have responsibilities to their parents and grandparents.  The Tribunal is aware that many couples, particularly those with tertiary qualifications, do make decisions to live at great distance from their families, despite strong family ties, however in this matter there is substantial evidence of a detailed plan to return home, construct a business in Brazil involving the applicant’s father at investment and management levels, and live near family. The applicant submits that the opportunities to create a similar life in Australia are not attractive, and not necessarily open to her. On balance, the Tribunal accepts the applicant’s claims that she intends to return home with her family at the conclusion of her studies. The Tribunal finds some credibility in the applicant’s claim that the applicants plan to return to Brazil.

6. Taking all the above into account, the Tribunal is satisfied that the applicant intends to complete her package of studies in July 2020 and return to Brazil.

7. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily and meets cl.500.212(a).

8. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

9. 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.

Secondary applicant

1. The second-named applicant’s entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether they meet any additional visa criteria applicable. Given that the application is being remitted to the Department to consider the remaining criteria for a Subclass 500 visa in respect of the primary applicant, it is appropriate that the Department considers the remaining criteria in respect of the secondary applicant.

DECISION

1. 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 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

   The second-named applicant to be reconsidered on the basis of the remit of the primary applicant.

Meredith Jackson
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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.