FREIRE DE FREITAS (Migration)

[2019] AATA 6184

FREIRE DE FREITAS (Migration) [2019] AATA 6184 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fernando Freire De Freitas

CASE NUMBER:  1721585

HOME AFFAIRS REFERENCE(S):          BCC2017/2508646

MEMBER:Frank Russo

DATE:28 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 October 2019 at 8:11pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – multiple course enrolments cancelled – held five visas – returned to Brazil four times in eleven years in Australia – strong incentives to remain in Australia – wife on 457 visa – young child – compassionate and compelling circumstances – physical injury – using student visa program to maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499
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 24 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 July 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 37-year-old Brazilian national.

5. The applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

6. The applicant was assisted in relation to the review by their registered migration agent.

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

   BACKGROUND

8. In addition to the application form, the applicant provided the Tribunal with the following documents prior to the hearing:

   a.Copy of the delegate’s decision, dated 24 August 2017;

   b.Confirmations of Enrolment (CoE) for the Certificate in Project Management Practice and the Diploma of Project Management, created on 28 November 2018;

   c.A s.359(2) response, ‘Additional Response Sheets’ and submissions provided by the applicant’s agent, provided to the Tribunal on 16 April 2019;

   d.Submission provided by the applicant’s agent, dated 23 May 2019, as well as attached copies of the following decisions of the Tribunal:

   i.Zhang (Migration) [2019] AATA 193 (22 January 2019;

   ii.Patel (Migration) [2018] AATA 2696 (26 April 2018);

   iii.Yuliyastrawan (Migration) [2018] AATA 5435 (1 November 2018);

   iv.Oktarina (Migration) [2018] AATA 5420 (5 November 2018); and

   v.Leite Silva (Migration) [2018] AATA 3176 (12 July 2018)

   e.Applicant’s transcript for the Bachelor of Administration from Salgado De Oliveira University, Brazil;

   f.Certificate for General English Intensive, issued by The English Language School in Sydney on 26 June 2008;

   g.Certificate of Attainment for General English course and Certificate of Attendance, both issued by Sydney English Language Academy on 15 January 2009;

   h.Statement of Attainment for units of competency that form part of the Advanced Diploma of Business (Marketing) and Certificate Transcript, both issued by Sydney Business and Travel Academy on 9 June 2010;

   i.Advanced Diploma of Leadership and Management and Transcript of Units of Competency Achieved and Qualification Awarded, issued by Warwick Institute of Australia (Warwick Institute) on 26 July 2018;

   j.Confirmation of Attendance in the Advanced Diploma of Leadership and Management, issued by Warwick Institute on 13 August 2018;

   k.Letter from Sydney School of Business & Technology (SSBT), dated 22 May 2019, certifying the applicant’s enrolment in the Certificate IV in Project Management Practice; and

   l.Copy of the applicant’s father’s financial account information, and declaration from the applicant’s father, dated 23 May 2019.

9. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

10. At the hearing the applicant gave evidence that he first arrived in Australia in March 2008. At the time he had been working for Hertz in Brazil. He stated that his sister was living in Australia at the time, and that she is an Australian citizen, although she currently resides in the United States. He stated that he decided to come to Australia after talking to his sister. He told the Tribunal that languages were always his weakness, that he knew how important language skills are and that they would help him with his career. He stated that English courses in Brazil are very basic, and he saw the opportunity to come to Australia. He stated that his initial intention was to come to Australia for six months and he enrolled in an English language course. He stated that his girlfriend at the time decided to come with him, and that he had some help from his sister’s boyfriend, who got him casual work at Domino’s Pizza.

11. The applicant told the Tribunal that in August 2008 he had a motorbike accident, in which he fractured his wrist and shoulder. He was working while he had this accident and was covered by workers compensation. As a result of this accident he changed his plans. He stated that he returned to Brazil, where he talked to his family. He stated that he decided to return to Australia as his expenses were paid for, and he decided to dedicate time for learning English and to enrol in a Business and Marketing course. However, his English wasn’t good enough, so the school enrolled him in an extra English course. He then commenced studying the Advanced Diploma of Business (Marketing), however he had problems with his wrist. The applicant told the Tribunal that his right wrist had been fractured in the motorbike accident and he found it physically difficult to write. He told the Tribunal that he has documents regarding his injuries from that accident.

12. The applicant gave evidence that he completed the first part of the Advanced Diploma of Business (Marketing), which he said was one of the two years required to complete this qualification. He stated that in April 2020 he decided to withdraw from the course. He told the Tribunal that his former partner, who is also a Brazilian national, was missing home a lot, and that between studying and undertaking casual work, he didn’t have a lot of time for her, and so she wished to develop her skills as well. She enrolled in an English language course and he became the secondary applicant to her Student visa application. He stated that she changed courses a little, that she studied Theology and she was progressing with her studies. He told the Tribunal that he started to have relationship problems, and that towards the end of 2016 he had a knee injury while playing soccer with friends. He stated that he returned to Brazil for two to three months at the beginning of 2017, where he was covered by health insurance and he had surgery. The applicant’s movement record indicates he departed Australia on 30 January 2019 and returned on 18 March 2019.

13. The applicant told the Tribunal that the relationship with his partner ended in June 2017. He stated that she applied for a new visa at that time, but without continuing to be in a relationship with her, there was no reason for him to be on her visa. The applicant gave evidence that he thought about going straight back to Brazil, but he had conversations with his family and he decided to instead complete at least one course in Australia before returning to Brazil.

14. The applicant provided further information in the ‘Additional Response Sheet’ provided with his s.359(2) response:

    [The applicant’s former partner] … frustrated with her English level, lack of education and difficulty to communicate we decided to enrol her studying. She started with English then diploma then higher education.

    In 2017 our relationship broke down. In this situation, I decided to start preparing myself to return to Brazil. The primary idea was to learn the language and get qualified before I return to Brazil.

    Looking for an excellent opportunity in Brazil. I am doing the best courses (all related to Business/Administration) that will help open doors there for a job or even a Business.

15. The applicant stated that he enrolled in an Advanced Diploma of Leadership and Management, which was the subject of the visa application currently under review. When asked why he chose this course, he stated that he was thinking of enrolling in Accounting, which is a subject he likes. He stated that he struggles with language, but is good with numbers, but upon further research, he realised that accounting systems in Australia are different from those in Brazil, and it therefore wouldn’t be useful for him to study Accounting.

16. The applicant gave evidence that he has a dream of opening his own business. He stated that all of his university studies related to Administration, stating he did business administration and marketing administration, although he only completed three-quarters of a degree and does not have any tertiary qualifications from Brazil. He stated that he needs to go back and complete his qualifications in Brazil, and stated that he needs to check the subjects which are missing from his degree. When asked further about the type of business he would like to open, he stated a consulting business with a focus on international markets.

17. By the day of the hearing the applicant had completed the Advanced Diploma of Leadership and Management, and provided the Tribunal with a copy of the Advanced Diploma, issued on 26 July 2018. At the time of the hearing he was enrolled in a Certificate IV in Project Management, which he commenced on 14 January 2020 and was due to end on 15 December 2019. He also has a CoE for a Diploma of Project Management, starting on 13 January 2020 and ending on 13 December 2020.

18. The applicant told the Tribunal that he has always been in contact with family and friends in Brazil, and he decided that going back to Brazil immediately would be dangerous, so he decided to enrol in Project Management as the qualifications would be useful in Brazil. He stated that education from Australia is well regarded in Brazil. In his s.359(2) response also states that he is passionate about administration/business and that he plans to open a consulting company in Brazil, to assist companies to expand their products overseas and to grow their business.

19. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal, namely that the information may indicate that he has enrolled in additional courses at the Vocational Education and Training (VET) level in order to extend his stay in Australia. The Tribunal explained to the applicant the consequences of relying upon the information, namely that the information may be the reason or part of the reason for affirming the Delegate’s decision. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments or wished to respond in relation to the information contained in his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

20. The applicant indicated that he wished to respond to the information contained in the PRISMS record at the hearing. He indicated that the PRISMS record was a correct reflection of his enrolment history.

21. The Tribunal notes that the applicant’s PRISMS record lists his completion of three English courses, and notes that the second enrolment was extended for compassionate or compelling circumstances, which is consistent with the applicant’s evidence about his motorbike accident in August 2008. The PRISMS record then records three enrolments in the Advanced Diploma of Business (Marketing), commencing in October 2008 and 3 November 2008, both of which were cancelled for compassionate or compelling circumstances, and another commencing on 9 February 2009, which was cancelled on 1 April 2010 because ‘Student Notifies Cessation of Studies’. This is consistent with the evidence the applicant gave about the difficulties he had in studying because of his wrist injury, as well as his cessation of studies in 2010 to support his partner of the time with her studies.

22. When asked why the applicant had now chosen to enrol in Project Management courses, following the completion of the course which was the subject of his visa application, the applicant stated that he chose to do leadership and management for his future business plans where he plans to open his own business. He stated that with Project Management he believes he will be able to get a job faster in Brazil, particularly in light of changes made by the new government in Brazil, which he stated has done a lot to encourage new businesses. He stated that candidates with various languages would have more opportunities in this environment, particularly if they have acquired a few certificates overseas.

23. The Tribunal put to the applicant the potential concern that his enrolment history may indicate that he has enrolled in his current courses in Project Management principally to maintain residence in Australia, and gave the applicant an opportunity to respond to this potential concern. The applicant responded that when he came to Australia he studied English, and then his focus changed to administration. He stated that his English skills were not sufficient to start his Advanced Diploma of Business (Marketing), so he had to study more English. He stated that he enrolled in the Advanced Diploma of Business (Marketing) to be able to provide for and support his partner. He indicated that the period from 2010 to 2017 shouldn’t be considered, as during that period he was a dependant to his partner’s Student visa, and under the conditions of his visa he was not able to study for more than three months at a time. He stated that during this period, while he was encouraging and supporting his partner in her studies, he was unable to study himself. He stated that it was only after their relationship came to an end that he decided that he had to restart his studies.

24. As to why he has chosen to study in Australia, rather than Brazil, he stated that it is because of the reputation of education from Australia. He stated that recent changes made by the Brazilian government would mean he would have a competitive advantage.

25. As to why he has chosen to study at his current provider, SSBT, he stated that he chose it on his education agent’s advice regarding the credibility of the course, as well as because of the location and the timing of the classes.

26. In terms of his ties to Australia, the applicant gave evidence that he has a partner who is a Polish national, who currently resides in Australia on a Temporary Work (Skilled) (Subclass 457) visa. They have a son who was born in June 2018. The applicant confirmed that their son was born as he was completing the Advanced Diploma of Leadership and Management. He stated that he found this a little hard, but he managed to finish the course.

27. The applicant stated that his parents and a sister live in Brazil. He stated that his parents came to meet their grandchild in Sydney after his birth. He stated that his father is 79 and told him that he can’t do long travel anymore, and his parents want to spend more time with their grandchild. The applicant also has a sister who lives in the United States of America. He stated in his s.359(2) response that he keeps in contact with his family regularly through phone calls, social media and phone applications. The applicant confirmed that he has no family living in Sydney other than his partner and son.

28. The Tribunal raised with the applicant the potential concern that the purpose for his current visa application may be to maintain residence in Sydney, given he has a partner and son who are not secondary applicants to his visa application, and gave the applicant an opportunity to respond. The applicant responded that his principal plan is to have a better future with the help of his current studies. When asked about his long-term plans for his partnership, given his wife is a Polish national who currently holds a 457 visa, he stated that she would marry him if he were to be in Brazil, and they would reside in Brazil.

29. The applicant gave evidence that he works as a supervisor at Pizza Workshop, where he works 20 hours per week and earns $25 per hour. He has no property in Australia, but in Brazil has two apartments in his name, as well as a further two in his mother’s name. Prior to arriving in Australia he worked in the financial department of Hertz in Brazil. The applicant gave evidence that he is supported financially by his parents with his studies, and he provided copies of financial accounts of his father.

30. When asked about his incentives to return to Brazil at the conclusion of his studies, the applicant said that life in Australia isn’t easy because of the issue of visas. His father is also insisting that he returns to Brazil. He gave evidence that there are no civil or political issues which would affect his return to Brazil, and he has an exemption from military service.

31. The applicant stated that he has not had a visa application to Australia refused, other than the current application subject to this review. He gave evidence that he has been refused a visa to the United States of America, which he planned to visit for his sister’s wedding. When asked about the circumstances, he stated that his understanding was that the authority in the USA thought that as he had been in Australia for a length of time, he might stay in the USA. Further details are provided in the applicant’s ‘Additional Response Sheet’ provided with his s.359(2) response.

32. The applicant gave evidence that since his arrival in 2008, he has returned to Brazil on four occasions, in 2008 after the motorbike accident, twice in 2015 and once in 2017 for surgery on his knee.

33. When asked whether there are any other relevant matters or information that the Tribunal should have regard to in assessing his intention, the applicant stated that he really wants to finish his studies and that it is important to both him and his family that he concludes it.

34. The Tribunal has also had regard to the submissions of the applicant’s agent at the hearing as well as the written submissions dated 16 April and 23 May 2019, which include the following additional matters of relevance:

    a.The applicant has completed the Advanced Diploma of Leadership and Management, which suggests he is a genuine student. He has now enrolled in additional courses, specialising in Project Management, which be of benefit to his career;

    b.The applicant has remained compliant with visa conditions, including while he was a secondary applicant on his former partner’s Student visa;

    c.The applicant should not be punished because he was a dependant Student visa holder between 2010 and 2017, nor because his relationship didn’t work out; and

    d.The applicant has been attending classes, has been paying fees and making significant financial contributions as a student.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 temporary applicant for entry and stay as a student.

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

2. 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?

3. 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.

4. 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.

5. This is a somewhat difficult case to assess, given the length of time the applicant has now been in Australia, both as a primary and dependant Student visa holder, and the Tribunal has given careful consideration to the applicant’s evidence, his agent’s submissions and their various claims as to the applicant being a genuine temporary entrant. However, having considered all the material before it and the relevant considerations as set out in Direction 69, the Tribunal is not satisfied that, on balance, the applicant genuinely intends to stay in Australia temporarily for the reasons set out below.

6. The Tribunal accepts that the applicant has family ties in Brazil and also accepts his evidence that he and his mother have properties in Brazil. The Tribunal therefore accepts that the applicant has personal ties as well as economic ties which could serve as an incentive to return to his home country. The Tribunal also notes however that the applicant’s current partner is a Polish national, who is not a secondary applicant to the applicant’s current visa, and who at the time of the hearing held a 457 visa. The applicant and his partner have a son, who was born in June 2018. This raises some concerns that the applicant has ties with Australia which would present as strong incentives to remain in Australia following the completion of his current studies. The Tribunal also notes that in the approximately eleven-and-a-half years since the applicant first arrived in Australia, he has only returned to Brazil on four occasions, two of which were following the accidents he had in 2008 and 2017. The Tribunal considers this may suggest that despite his continuing ties to Brazil, the applicant may have little incentive to return to his home country following the completion of his studies. The Tribunal has however also considered the applicant’s evidence about his father being elderly, that he is too old to travel long distances, and wishes for the applicant to return to Brazil, as well as the other incentives the applicant has stated for why he would return to Brazil. Overall though, the Tribunal doesn’t consider the evidence of these incentives to be sufficient to overcome the concerns the Tribunal has about the applicant’s personal circumstances in Australia.

7. There is no evidence of any military service commitments or political or civil unrest that would act as an incentive for the applicant to remain in Australia. There is no evidence that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Brazil, relative to others in that country, and the Tribunal makes no adverse findings in regards to these considerations.

8. The applicant provided evidence that he has been attending his current course, and he gained the Advanced Diploma of Leadership and Management. He has also lived in Australia for an extended period of time. The Tribunal therefore makes no adverse findings in relation to his knowledge of living in Australia, of his intended course or education provider. The applicant has provided reasons for not undertaking the proposed study in his home country, and the Tribunal makes no adverse findings in relation to the factor contained in cl.9(a) of Direction No.69.

9. The length of time which the applicant has remained in Australia on temporary Student visas and associated Bridging visas raises concern as to his intentions to remain in Australia only temporarily. The applicant first arrived in Australia on 9 March 2008, and at present has resided in Australia for a period of over 11 years and 7 months. He has held two Student visas as the primary visa holder and three dependant Student visas, in addition to associated Bridging visas. The applicant completed the Advanced Diploma of Leadership and Management, the course which was the subject of his current visa application, on 8 July 2018. Rather than returning to Brazil, as he indicated was his intention in his visa application, the applicant has enrolled in a further Certificate IV and Diploma course, which are due to conclude on 13 December 2020, which would extend his stay using temporary visas for a period of over12 years and 9 months.

10. The Tribunal has given serious consideration to the applicant’s claims as to why he has now enrolled in the Certificate IV and Diploma of Project Management, including his claims as to how it may assist him in finding work in the current environment in Brazil. However, the Tribunal considers it more likely that the applicant has enrolled in these additional Project Management courses to further extend his stay in Australia, as a means of circumventing the intentions of the migration programme and to maintain ongoing residence.

11. The Tribunal has had regard to the applicant’s stated claims as to the value of the course to his future, but considers his claims to be of a general nature and to lack specific detail. The applicant stated in his visa application that he wants to be a business entrepreneur, and gave evidence at the hearing and in his s.359(2) response that he wishes to start a consulting business, and that Project Management qualifications could help him get a job faster in Brazil. The Tribunal considers that while a qualification in Project Management could provide some additional value to the applicant in terms of his employability or his skills in opening a future business, the applicant is undertaking this course at the Certificate IV and Diploma levels, which is below the Advanced Diploma qualification which he obtained in July 2018. This may suggest that he has enrolled in additional courses which are relatively inexpensive and of short duration to extend his stay. While the applicant’s agent submitted the applicant’s current courses are not inexpensive and are still a sacrifice for the applicant’s family in Brazil, the applicant’s CoE’s indicate the total cost for each course is $5,400, which run for approximately 11 months. The Tribunal considers this to be relatively inexpensive and short when compared with other courses, noting that the applicant has enrolled in courses entirely at the ELICOS and VET levels.

12. There is insufficient information about the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed study, and the Tribunal makes no adverse findings regarding this factor.

13. The Tribunal has given a significant amount of consideration to the applicant’s claims regarding his support for his former partner’s education from 2010 to 2017, and how he was unable to pursue his own studies again until after their relationship ended. The Tribunal accepts that under the Student visa program an applicant may spend time as a dependant Student visa holder and then seek to be a primary visa holder, and vice versa. The Tribunal accepts that the applicant had significant injuries in 2008 and 2016, and the injuries in 2008 in particular, in which he fractured his wrist, impacted on his ability to study at that time. The Tribunal makes no adverse findings in relation to the applicant’s academic progression while he was a student in 2008 or 2009, and notes that he received several deferrals in 2008 as a result of compassionate or compelling circumstances. The Tribunal notes however that the applicant did not complete the Advanced Diploma of Business (Marketing) in 2010. He instead notified his course provider, SBTA, that he would be ceasing his studies. His enrolment in this course was cancelled on 1 April 2010. The applicant gave as the reason for this his need to support his partner of the time in her studies.

14. While the Tribunal accepts this as a reasonable explanation for the applicant’s cessation of studies in 2010, and accepts that the applicant complied with the conditions of his visas while he was a dependant Student visa holder and that this was an entirely lawful means for the applicant to remain in Australia, the applicant gave evidence that he did not commence studying again in 2017 until his relationship with his former partner ended. While the Tribunal has had regards to the applicant’s claim that he couldn’t concentrate on his own studies until then because he was supporting his partner and because his Bridging visa did not allow him to study for more than 3 months at a time, and gives some weight to these claims, the Tribunal considers it more likely that the timing of the applicant’s current application was for the purpose of extending his stay in Australia. The Tribunal notes that the applicant’s last Student visa ended on 15 July 2017. He gave evidence that his relationship at that time ended in June 2017. He was no longer able to apply as a dependant on his former partner’s visa application. The applicant commenced the Advanced Diploma of Leadership and Management on 10 July 2017, only a few days before he made the current visa application on 14 July 2017. The timing of the applicant’s re-commencement of studies suggests they were re-commenced for the purpose of a successful Student visa outcome, rather than because of the value of the course to the applicant’s future.

15. The Tribunal takes into account the applicant’s successful completion of the Advanced Diploma of Leadership and Management and gives this some weight in his favour in assessing his circumstances as a whole.

16. The applicant’s immigration history refers to both his travel and visa history. The applicant has held five Student visas, although three have been as a dependant. The Tribunal notes the applicant’s evidence as to the visa to the USA which was refused, including the extract which is pasted into his Additional Response Sheet to the s.359(2) response. The Tribunal notes that the pasted text indicates that one requirement for the visa was that the applicant demonstrate he has a residence in a foreign country which he has no intention of abandoning, and that the applicant did not demonstrate ties that will compel him to return to his home country after his travel to the USA. The Tribunal notes that it is possible to reapply for the Tourism visa to the USA at any time, supplying further information, and the Tribunal therefore places no weight on this visa refusal in the context of the current application, in which the Tribunal must consider the applicant’s circumstances as a whole and the Tribunal must reach its own findings based on the evidence before it (relevant to cl.14(a)(ii) of Direction No.69).

17. Based on the applicant’s evidence, the Tribunal makes no adverse findings in relation to the following aspects of the applicant’s immigration history: clauses 14(a)(i), 14(b)(i), (ii) and (iv). The Tribunal however considers that the amount of time the applicant has spent in Australia on temporary Student and associated Bridging visas, indicates that the current application may be used primarily to maintain ongoing residence. As noted above, the applicant’s evidence raises concerns that he has enrolled in relatively short and inexpensive courses. In this case the applicant enrolled in a one-year course for the purpose of this visa application, and subsequently enrolled in two further year-long cases at the Certificate IV and Diploma levels once he completed that qualification.

18. The Tribunal has also considered the copies of decisions which were provided as part of the applicant’s agent’s submissions and considered their relevance to the circumstances of this application. While an aspect of each of these cases may be similar to an aspect of the application currently before the Tribunal, the Tribunal must assess the circumstances of this applicant as a whole, and considers that the circumstances as a whole in each of the cited decisions are markedly different from the circumstances in the current case. For instance, in only one of the cited decisions had an applicant already resided in Australia on temporary Student and Bridging visas for the same length of time as the current applicant, with other circumstances in that application differing markedly. As noted in the submissions, the Tribunal is not bound by other Tribunal decisions, but in any case, the Tribunal does not find these decisions of great assistance when its responsibility is to assess the applicant’s circumstances as a whole, having regard to the factors which are specified in Direction No.69.

19. The Tribunal has also given regard to whether there is any other relevant matter or information, and finds there to be no other relevant matter to the assessment of the applicant's intentions to temporarily stay in Australia in addition to the matters covered already above. The Tribunal has considered all of the information provided by the applicant in support of the applicant's application.

20. The Tribunal has considered the applicant’s claims as to the value of his current course to his future and the reasons why he has now enrolled in further study after being a dependent Student visa holder for approximately 7 years. However, in considering the applicant’s circumstances as a whole, the Tribunal is unable to reaching a finding, on balance, that the applicant satisfies the genuine temporary entrant criterion. In making this finding, the Tribunal gives weight to the applicant’s visa history and enrolment history, which overall indicate  that the Student visa application is more likely for the purpose of extending the applicant’s stay in Australia. This is also supported by the applicant’s personal family circumstances in Australia, and the Tribunal’s findings about the value of the course to the applicant’s future.

21. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

22. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

23. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Frank Russo
    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;

    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

    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.