Loss Machado (Migration)

[2017] AATA 609

Loss Machado (Migration) [2017] AATA 609 (6 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ruda Loss Machado

CASE NUMBER:  1605715

DIBP REFERENCE(S):  BCC2016/532375

MEMBER:John Cipolla

DATE:6 April 2017

PLACE OF DECISION:  Sydney

DECISION: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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 06 April 2017 at 5:02pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Substantial work experience in Australia – Change in career course - Formal qualifications will make him competitive – Genuine temporary stay

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 - cl.572.223(1)(a)

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 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 to the Department of Immigration for the visa on 4 February 2016. The delegate decided to refuse to grant the visa on 4 April 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate could not be satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. Recourse to the delegate’s decision record indicates that the delegate found that since the applicant arrived in Australia in March 2012 he had studied a general English language course followed by a number of business and marketing related courses. The applicant’s curriculum vitae provided to the Department did not show any evidence of the applicant utilising his qualifications in business and marketing and indicated that the applicant had held a number of positions in the hospitality industry. The evidence indicated that the applicant had now changed his career path and was studying a Certificate in Commercial Cookery followed by Diploma of Hospitality and the delegate found that the applicant did not provide a plausible explanation for this change. The delegate found that having regard to the applicant’s previous education history, the change of his career pathway and his immigration history in Australia that he was utilising the student visa program to maintain ongoing permanent residence in Australia.

5. The applicant provided a number of documents to the Tribunal at review stage. This included evidence that the applicant was enrolled in a Certificate III in Commercial Cookery from 22 February 2016 to 19 February 2017. An undated statement from the applicant’s mother indicating that the applicant was in a relationship with Olivia Dawn Davidson since May 2013 and that they were both seeking to extend their visas in Australia so that Ms Davidson could achieve a Diploma of Management. The applicant also provided evidence of him completing studies in English language, and an Advanced Diploma of Marketing. The applicant also provided a letter of intention pertaining to his studies in Australia which the Tribunal has duly considered. The Tribunal also received a letter from the Bavarian Haus restaurant in Surfers Paradise signed by Carol Fulton Manager which is undated, a confirmation of health cover for the applicant from NIB, a copy of a Certificate III in Commercial Cookery, photographs of the applicant in his workplace as a commercial cook and with his partner.

6. The applicant appeared before the Tribunal on 4 April 2017 to give evidence and present arguments.

7. The applicant gave his name and date of birth. The applicant advised that he first came to Australia in March 2012 as the holder of a Subclass 572 visa. The applicant confirmed that he had been in Australia for 5 years and that he had not left Australia since his initial arrival.

8. The Tribunal asked the applicant about his education history in Brazil. The applicant advised that he completed high school in 2008, and then went to university and started studying for a Bachelor of Business Marketing a course of 5 years duration. The applicant stated that he successfully completed 3 years of this course, and that he has a further 2 years to go. The applicant stated that initially after leaving school he thought that a degree in a business-related subject would open up more opportunity for him. The Tribunal asked the applicant why he did not finish his Bachelor degree and he advised that Brazil is a large country with a big population and that the workplace is very competitive. The applicant stated that he determined that it would be in his interest to learn another language and that English would be very beneficial to his future career. The applicant decided that if he could learn English and get some overseas study experience it would make him more competitive.

9. The Tribunal asked the applicant about his study history in Australia. He advised that after his arrival in March 2012 he spent 8 months studying English language followed by a certificate in business marketing and a diploma of marketing. The applicant stated that he was not awarded the certificate because he had some outstanding assessments but he was awarded the diploma of marketing.

10. The Tribunal asked the applicant what he did after this. The applicant stated that he had a Canadian girlfriend at the time who was in Australia as a student visa holder and that he became a dependent member of her family unit and went under the umbrella of her visa from December 2014 to January 2016. The Tribunal asked the applicant what he was doing in Australia during this period and he advised that he was working as a Cook in restaurants in Queensland.  The applicant stated that his relationship with his girlfriend had ended.

11. The Tribunal asked the applicant about his work history in Australia and he advised that he had worked at Firefly in Broadbeach on the Gold Coast, the Bavarian Beer Cafe in Broadbeach, The Glasses which is a French restaurant in Main Beach and Bavarian Haus his current employer. The applicant stated that he loved working in a commercial kitchen and had decided that this is the direction he wants his future career to go in. The applicant stated that he commenced studies in Commercial Cookery at Spencer College in Southport in Queensland and that he has so far completed a Certificate III and Certificate IV and has a further 18 months of study in order to become a qualified Chef. The applicant stated that he was currently halfway through his studies. The Tribunal asked the applicant how he supported himself in Queensland and he advised working 20 hours a week as a Chef.

12. The applicant stated that the experience that he was obtaining in Australia was very beneficial to him as Australia was seen as a food destination and had produced some excellent chefs and the applicant believed that his qualifications when he completes his studies along with his experience will make him very competitive and that he hopes to use these skills when he returns to Brazil and a further these skills in other overseas food hotspots such as Italy.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

15. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)     the Minister is satisfied that 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)     …

16. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

17. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

18. The evidence before the Tribunal indicates that the applicant after completing high school in 1989 commenced undergraduate studies in business marketing. The evidence indicates that the applicant did not complete these studies. Since the applicant’s arrival in Australia in March 2012 he has completed general English-language courses followed by some business and marketing related courses. The evidence indicates that the applicant has worked in a number of commercial kitchens starting out as a kitchen hand and working his way up to cook. The applicant stated that he has thoroughly enjoyed working in kitchens as a cook and has decided that this is the future direction that he wants his career to take. The applicant advised the Tribunal at hearing that he is almost halfway through a Certificate III and IV in Commercial Cookery and that he will then complete a Diploma of Hospitality so that he can become a fully qualified Chef. The applicant stated that he has a genuine passion for cooking and food and hopes to realise this potential upon return to Brazil when he completes this course of studies. The Tribunal finds that the applicant as a result of his work experience in Australia has decided to change his career course to a pathway of Commercial Cookery. The evidence indicates that the applicant has obtained substantial workplace experience and is now buttressing this experience with formal qualifications in Commercial Cookery.

19. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.572.223(1)(a).

20. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

21. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    John Cipolla
    Senior Member