Leite Silva (Migration)

[2018] AATA 3176

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

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Miriam Leite Silva
Mr Erick Do Nascimento Placido Santiago

CASE NUMBER:  1705093

HOME AFFAIRS REFERENCE(S):           BCC2017/93851

MEMBER:David Barker

DATE:12 July 2018

PLACE OF DECISION:  Sydney

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 Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.311 of Schedule 2 to the Regulations

Statement made on 12 July 2018 at 3:20pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Credible future plan – Business venture – Consistent study path – Relevance of studies – Significant family ties in home country – Member of family unit – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.311

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 28 February 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 9 January 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 they were not satisfied the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 18 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the second named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5. The applicant was 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.

   Background

7. The applicant is a national of Brazil and is 35 years old.  The second named applicant is her spouse.  He is also a national of Brazil and is 32 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application states the applicant first arrived in Australia in July 2016, as the holder of a Subclass 572 Student visa to study a Certificate IV in Project Management, which she completed and that at the time of this visa application, she had enrolled in a Certificate III and Certificate IV in Commercial Cookery. The delegate noted the applicant holds a Bachelor degree in Biological Sciences from Brazil, which she attained in 2007.

9. In response to an invitation to the applicant from the Tribunal to provide documents or arguments she wished to rely on in this review, the applicant provided documentary evidence including, but not limited to:

   ·written submissions from her representative;

   ·support letters;

   ·translated extracts from a business plan;

   ·translated extract from Private Instrument of Possession Rights Transfer;

   ·translated extract from a real estate letter regarding commercial lease rates;

   ·translated extract from technical opinion of commercial property lease;

   ·translated extract from property registration record;

   ·evidence of her current and past academic studies.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 intends genuinely to stay in Australia temporarily.

11. 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?

12. 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.

13. 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.

14. I found the applicants to be credible witnesses who gave their oral evidence in a calm, matter of fact manner without embellishment.  The applicant’s oral evidence is consistent with the documentary evidence she has provided with her review application and the submissions made in relation to this documentary evidence.   I am satisfied weight can be placed on the applicants’ evidence.

15. The applicant told the Tribunal she can understand why the delegate made their comments about her undertaking study in Australia at a lower academic level than the degree in biological sciences she gained in Brazil.   She said she completed that degree nine years ago and only worked for a relatively brief period as a biologist before working in the hospitality and retail clothes sectors.  She said she was a manager of a clothes store for two years and from that previous work experience gained skills in customer service, team management and other back office roles.

16. The applicant tod the Tribunal she wanted to change her vocational direction and along with a friend from her university days started developing a plan to open an organic café and organic food business in their home region of Brazil.  She said she looked into studying cooking courses in Brazil, but after researching the issue decided Australian cookery courses offered a broader and more comprehensive learning opportunity. 

17. The applicant gave evidence she has completed the Certificate II in Commercial Cookery and that the Certificate IV course will finish in December 2018 and that following that she and her spouse will return to Brazil and she will then, along with her friend, further the plan to open the organic café and food business.  She said she has studied consistently since she commenced her initial course in Australia and has completed all courses she has undertaken, with the exception of the Certificate IV course she is currently studying.

18. The applicant said she receives some financial support from her father, who is a lawyer in Brazil. She said she and her spouse have a number of relatives in Brazil and that her spouse’s’ father is not well.  She said she has some part time work as a kitchen hand at the University of Technology Sydney and her husband has part time work as a removalist.

19. Having considered the applicant’s evidence during the hearing, the documentary evidence she has provide with her review application and her circumstances overall, I am satisfied her explanation for both her study history and study goals are plausible. I am satisfied she has explained why she has undertaken study in the vocational sector level in Australia, despite holding a higher education sector degree from her home country.  I am satisfied she has a credible plan for her future employment and business venture in Brazil and that the study she has undertaken in Australia has direct relevance to the plans. The applicant has studied consistently whilst she has been in Australia and will complete these studies before the end of the year.  I accept that with the exception of her spouse, the applicant does not have relatives in Australia and that that she and her spouse both have significant family ties to their home country which provide them with an incentive to return there.  I note the applicant and her spouse are working part time in Australia but I am satisfied this employment does not provide them with a clear incentive to seek to remain their residency Australia for economic reasons.

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

    Does the applicant intend to comply with visa conditions?

21. 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.

22. 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). The following conditions may also be imposed in some cases (cl.500.611(2)): 

23. The Tribunal does not have any evidence to indicate the applicant has not complied with visa conditions in Australia. The Tribunal takes into account the fact the applicant is currently studying and is making good progress towards completing the Certificate IV in Commercial Cookery and intends to shortly thereafter depart, with her spouse and return to Brazil.

24. 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?

25. 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)).

26. The Tribunal has considered the applicant’s circumstances as a whole and has given weight to the applicant’s plausible plan for developing an organic café and food business in her home country. The Tribunal has also placed weight on the fact the applicant has displayed consistency in her endeavours to complete her current study pathway.  

27. 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.

    The second named visa applicant – member of a family unit

28. As the Tribunal has determined the primary visa applicant satisfies the criteria in cl.500.212, other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

29. ‘Member of a family unit’ is relevantly defined at r. 1.12(1)(b), which provides:

    Reg 1.12    Member of the family unit

    1.For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7),  a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)     a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (d)     a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)               does not have a spouse or de facto partner; and

    (ii)              is usually resident in the family head's household; and

    (iii)             is dependent on the family head.

30. The Tribunal accepts the second named visa applicant is married to the primary applicant and therefore her spouse. Accordingly the second named visa applicant is a member of the family unit of the primary applicant and satisfies cl.500.311 in Schedule 2 of the Migration Regulations.

31. Given the above findings, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

32. 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.

33. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.311 of Schedule 2 to the Regulations.

    David Barker
    Member