Jardim (Migration)

[2021] AATA 4263

Jardim (Migration) [2021] AATA 4263 (3 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Renata Jardim

CASE NUMBER:  1932051

HOME AFFAIRS REFERENCE(S):          BCC2019/4399404

MEMBER:Vanessa Plain

DATE:3 September 2021

PLACE OF DECISION:  Melbourne

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 03 September 2021 at 1:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – de facto partner’s presence in Australia – employment in Australia – satisfactory academic progression – researched study options and job market in home country – financial and family ties in home country – value of course to applicant’s future – 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 Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 3 September 2019. The delegate refused to grant the visa on 29 October 2019.

2. The delegate made the decision on the basis that evidence of:

   ·Economic ties in the applicant’s home country

   ·A demonstration that the applicant has undertaken a comparison of similar courses offered in their home country  

   ·The applicant’s proposed business, its size, structure and location

   ·An explanation as to why the applicant can’t study similar courses in their home country  

   ·An explanation as to how the proposed courses will assist the applicant’s future career prospects

   ·An explanation as to how the courses will assist the applicant by comparison to courses that could be obtained locally

   ·An investigation of study options in the applicant’s home country

   ·An explanation of the applicant’s intentions upon returning home

   ·A demonstration as to who the courses benefit the future remuneration level of the applicant significantly enough to justify the continued expense the applicant will incur in Australia 

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The delegate’s decision record reveals that the applicant is a Brazilian woman who first arrived in Australia on 4 October 2017 utilizing an initial Student visa.  The delegate attributed weight to the fact that the applicant’s de facto partner was in Australia and has maintained ongoing residence since their arrival, together with the fact that the applicant was currently employed, as evidence of the fact that the applicant may not be a genuine temporary entrant. The delegate held significant concerns the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia   

4. The applicant appeared before the Tribunal on 3 September 2021 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Portuguese languages.

6. In advance of the hearing, the Tribunal received the following documents:

   • COEs for a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management scheduled to conclude in October 2021  

   ·    Signed GTE statement

   ·    Response to request for student visa information (s 359(2) of the Act)

   ·    A suite of academic documents evidencing course attendance, grade attainment and course completion

   ·    Former employer letters of reference

   ·    Documentation evidencing the applicant and her de facto partner’s wedding booking in Brazil

   ·    Airfares tickets to Brazil

   ·    Death certificate for applicant’s family member

   ·    Airfare receipts for travel to New Zealand

   ·    Deed of title to residential property

   ·    Research into the hospitality sector in Brazil

   ·    Research into expected salary

   ·    Business plan   

7. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  The evidence before the Tribunal clearly establishes that the applicant has attended class and progressed academically, she has one more month of her course to go and has booked her wedding at home in Brazil and is not currently working in Australia.  Therefore, the concerns the delegate rightfully held at the time of the delegate’s decision as a basis for finding the applicant was not a genuine student no longer exist.    

8. The Tribunal places significant weight upon the documents produced by the applicant in advance of the hearing.  The substances of the documents plainly establish that the applicant has researched study options in her home country, has researched the job market in her home country, has financial ties to her home country, has strong family ties to her home country and has demonstrated the value of the courses to her future by her research and business plan. These are strong indicators of a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study.     

9. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

10. 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

    Vanessa Plain
    Member