GOMES DE FARIA (Migration)

[2018] AATA 4324

GOMES DE FARIA (Migration) [2018] AATA 4324 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms CAROLINA GOMES DE FARIA

CASE NUMBER:  1703382

HOME AFFAIRS REFERENCE(S):           BCC2017/337675

MEMBER:Wendy Banfield

DATE:12 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl.500.212 of Schedule 2 to the Regulations

Statement made on 12 September 2018 at 2:33pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Completion of courses during short period of time in Australia – Courses selected related to future intentions – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 February 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 25 January 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Brazil and is currently 25 years old. She came to Australia on 17 July 2016 as the holder of a Subclass 570 Student Visa. At the time of the Tribunal hearing the applicant was enrolled and studying a Certificate III in Business and was approved to study a Certificate IV and Diploma in International Business. The applicant declared she intends to assist her mother in her business in Brazil which includes opening a patisserie school.

5. The applicant appeared before the Tribunal on 4 April 2018 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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 entrant for study.

9. 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?

10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

11. 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.

12. The applicant provided a written statement prior to the Tribunal hearing and gave evidence in person. According to the evidence, the applicant came to Australia with the intention of developing her English language skills and completed an English course in 2017 for which evidence was provided. Since then she has also completed a Certificate II in Customer Engagement and was studying a Certificate III in Business. The applicant confirmed she was studying a Bachelor of Gastronomy in Brazil but did not complete the course once her Australian Student Visa was approved.

13. Regarding her circumstances in her home country, the applicant declared her mother and siblings continue to live there. She said her siblings are not interested in their mother’s business which is why she intends to help develop it. The applicant confirmed she had been in a de facto relationship in Australia but said she was no longer.

14. The applicant arrived in Australia in 2016 with the original intention of studying English but declared she later decided it would be beneficial to study subjects related to business. She stated her mother owns a patisserie in Sao Paulo that they wish to expand and her studies in Australia will be useful in this regard. On balance, the Tribunal accepts the applicant’s evidence as credible and is satisfied the qualifications obtained from the course she is enrolled in will be of benefit to her in future.

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

    Does the applicant intend to comply with visa conditions?

16. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

17. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

18. There is no evidence before the Tribunal to indicate the applicant has not complied with visa conditions and accepts she intends to be compliant in future.

19. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

20. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

21. The Tribunal has taken into account the relatively short amount of time the applicant has spent in Australia, the fact she has studied and completed courses to date and is currently enrolled in a course of study. In addition, the courses selected appear to be related and in accordance with the applicant’s stated future intentions.

22. 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.

23. 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

24. 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 of Schedule 2 to the Regulations.

    Wendy Banfield
    Member