Marinho Ribeiro (Migration)

[2019] AATA 1991

Marinho Ribeiro (Migration) [2019] AATA 1991 (31 May 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Marcio Roberto Marinho Ribeiro

Miss Patricia Mallol Gonzalez

CASE NUMBER:  1728744

DIBP REFERENCE(S):  BCC2017/2177603

MEMBER:  Glenn O'Brien

DATE AND TIME OF

ORAL DECISION AND REASONS:          31 May 2019 at 1:42 pm (QLD time)

DATE OF WRITTEN RECORD:                18 June 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of time in Australia – personal ties developed – economic circumstances in Brazil and Spain – work history in Australia – pattern of enrolment – change in field of study – value of course – regression in level of study – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 31 October 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 31 May 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 October 2017, to refuse to grant the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 20 June 2017. At the time of the 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.

4. The applicant provided the Tribunal with a copy of the delegate’s decision record with the application for review. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 of the Migration Regulations 1994, because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

5. The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments. The Tribunal also heard evidence from the secondary applicant and Ms Carmel Harrison (a teacher) by telephone. The Tribunal hearing was conducted without the assistance of an interpreter in the English language. The applicants appeared at the hearing without the assistance of a registered migration agent.

6. The criteria for a Subclass 500 Student visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. The 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 entry and stay as a student.

7. 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;

   (b)the applicant intends to comply with the conditions subject to which the visa is granted, having regard to:

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(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.

1. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No. 69, ‘Assessing the genuine temporary entrant criterion for a student visa and student guardian visa applications’, made under section 499 of the Act. The 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, the value of the course to the applicant’s future, and 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.

2. 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 beneficial or unfavourable to the applicant.

3. 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.

4. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file, a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database. For completeness, the Tribunal provided the applicant with a copy of the PRISMS summary of enrolment. The Tribunal explained to the applicant, the relevance of the records to the review before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and comment on or respond to the information. The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

5. The applicant arrived in Australia on 24 November 2009. The Tribunal considered whether the applicant had reasonable reasons for not undertaking the proposed course of study in his home country if a similar course is already available there. In the applicant’s response to the Tribunal’s letter sent pursuant to section 359(2) of the Act, the applicant told the Tribunal, such courses are not available in Brazil and he wants to continue to study in Australia.

6. At the hearing, the applicant told the Tribunal that there is no such short course in Brazil, and he is more familiar with the Australian curriculum. The applicant commenced a Bachelor of Graphic Design in Brazil, but he did not complete that qualification. He told the Tribunal his grandmother, sister and niece live in Brazil and he keeps in contact with them through video chats and text messages. The applicant maintains no other community ties to his home country and has no assets in his home country. His grandmother owns an apartment in his home country, but he told the Tribunal that he recently released that to his sister.

7. The applicant’s defacto partner (the secondary applicant) told the Tribunal that her family is in Spain and she has been offered a position as a managing director and her family has

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assets in Spain and their life will be much easier in Spain and the Tribunal does accepts that evidence.

1. The applicant’s defacto partner is from Spain and the applicant, since being Australia, has worked on a part-time basis and currently works as an educator in early learning and currently earns approximately $25,000 per annum, working approximately 20 hours per week. The applicant told the Tribunal he wants to move to Barcelona with his partner and seek work in Spain, rather than returning to Brazil. The applicant told the Tribunal that his research indicated that current salaries were approximately $EU27,000 for positions in relation to early childhood care and that he would anticipate in earning a similar amount were he to return to Spain.

2. The applicant provided the Tribunal a letter, dated 20 April 2017, relating to employment in an organisation in Spain, for a future position in that centre. The applicant told the Tribunal that that position was a tentative position that was not a confirmed offer of employment and if he were to take up a position with that organisation, he would have to reapply. The applicant told the Tribunal that his partner provides him financial support during his study in Australia.

3. The applicant has returned to Brazil in 2011 and 2016 and has been to Spain in 2012 and 2013 for the purposes of visiting his in-laws. When he did return to Brazil, the applicant also made enquiries in relation to job opportunities in Brazil. The applicant has not taken positive steps in relation to seeking employment in Spain and the offer that was provided to the Tribunal is not a current offer and is not an offer to which the applicant would return to take up employment. He told the Tribunal that he would seek to find a job in Spain upon completion of his studies in Australia.

4. The applicant told the Tribunal he does not have any military service commitments and there are no circumstances of civil or political unrest in either Brazil or Spain that would induce him to apply for a visa to stay in Australia indefinitely.

5. In considering the applicant’s circumstances in his home country and his potential circumstances in Spain, on the basis of the evidence before the Tribunal, the Tribunal finds:

   a.The applicant provided reasonable reasons for not undertaking the proposed course of study in his home country. The applicant does have family ties in Brazil. The applicant does not have direct family ties in Spain, but does have ties to his de facto partner’s family, who reside in Spain. The applicant also told the Tribunal that his de facto partner’s family had some health issues, which would provide an incentive for them to return to Spain.

   b.In considering the period of time the applicant has been in Australia, the applicant’s limited travel to his home country since 2009, the uncertainty of any prospective employment plans in Spain (which is the country to which he intends to return) and the comparative salary that he currently earns in Australia on a part-time basis, with an anticipated but uncertain salary to what he may return to in Spain, these circumstances are not a significant incentive to return.

   c.The applicant is supported financially during his study in Australia by his partner, who also resides in Australia. The applicant earns income in Australia through part-time employment in his chosen career industry.

   d.The applicant told the Tribunal that he did work in Brazil prior to travelling to Australia, but those occupations were related to his then studies in his tertiary studies or tertiary degree and do not relate to work in the early childhood education and care sector. The applicant’s income in Brazil prior to coming to Australia was considerably less

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than the income that the applicant earns in Australia. The applicant’s anticipated income upon his return to Spain is either comparative to or may be higher than the income he earns in Australia, but the applicant’s Australian income is derived on a part-time basis, as opposed to a full-time work. The applicant does not have arranged prospective employment for his return to Spain and considering these matters as a whole, the applicant’s economic circumstances present as a significant incentive not to return home.

e.The applicant does not have military service commitments which would provide as an incentive not to return home.

f.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country or in Spain, of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.

g.There is no evidence regarding the applicant’s circumstances in his home country relative to others in that country or in Spain and the Tribunal makes no findings concerning the applicant in that regard.

1. The applicant is currently studying on a full-time basis for an Advanced Diploma of Leadership and Management. The applicant works part-time in Australia as an educator. The applicant told the Tribunal he rents a house with three other people upstairs and he and his partner have a self-contained unit downstairs. Given the significant period of time the applicant has been in Australia, both in study and in part-time employment, and the absence of significant travel to the applicant’s home country, the Tribunal is satisfied the applicant has developed friendships, financial and social connections to Australia, both through his work and study since 2009.

2. The Tribunal is concerned in relation to the applicant’s pattern of enrolment since arriving in 2009. The applicant travelled to Australia in 2009 to complete English and business courses and the applicant has, to his credit, completed a number of those English course and IELTS courses. The applicant was delayed in study because of the default of various education service providers and the Tribunal does not draw any adverse inference to the delay in his studies because of the default of those student service providers or the difficulties that he encountered in the administration services within those service providers.

3. The applicant enrolled in a Diploma of Management commencing on 2 February 2015 but ceased that course on 23 June 2015. The applicant told the Tribunal that at that stage he was seeking to improve his English and he did not have specific goals or plans in relation to that particular qualification and the applicant ceased enrolment in that course on a voluntary basis on 23 June 2015. The applicant changed his field of study to a Diploma of Early Childhood Education and Care and commenced that course on 22 June 2015. It was anticipated to be completed on 20 April 2017 however again, the applicant encountered administration difficulties with that service provider and the completion of his studies was delayed and the applicant told the Tribunal he completed the course in about May 2017. The applicant did not take up the enrolment in a Diploma of Leadership and Management, which was to commence on 10 July 2017, because of those administrative difficulties. Again, the Tribunal does not give that matter adverse weight in relation to the applicant, as the delay in his Diploma of Early Childhood Education and Care was not of his own doing.

4. The applicant subsequently enrolled in his current course of study which is the Advanced Diploma of Leadership and Management, which commenced on 13 August 2018. The applicant is currently undertaking that course of study.

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1. In considering the period of time the applicant has spent in Australia since 2009, in both work and study, the Tribunal assesses the applicant as having a good knowledge of living in Australia. The applicant demonstrated a sound knowledge of the course he is currently studying in and his education service provider.

2. In considering the applicant’s potential circumstances in Australia, on the matters before the Tribunal, the Tribunal finds:

   a.the applicant has ties to Australia, due to the period of time the applicant has spent living in Australia since 2009, in both work and study. The Tribunal is satisfied the applicant has developed friendships in Australia. His partner resides with him in Australia and he continues to work and study and considers his financial, social and emotional connection to Australia to provide a strong incentive to remain.

   b.The applicant’s pattern of enrolment, change in field of study, the length of study, (accepting that there were significant genuine reasons for the delay in some of those courses of study), and the reasons why the applicant has decided to enrol in a further course in the Advanced Diploma of Leadership and Management which was not contemplated when he arrived in Australia or when he applied for the visa under review by the Tribunal. Although the applicant did apply for the Diploma of Leadership and Management, which was a lower level qualification in the same field of study, the Tribunal considers that those matters evidence the student visa program is being used to circumvent the intentions of Australia’s migration program.

   c.In considering the matters set out in these reasons for decision, including the applicant’s period of time in Australia, the pattern of enrolment, changes in field of study, academic progression and employment in Australia in the applicant’s chosen industry, the absence of any prospective employment arranged in either Brazil or Spain, and the remuneration the applicant earns in Australia and anticipates earning in Spain on completion of his course, the applicant is using the student visa primarily to maintain ongoing residence in Australia.

   d.The applicant has a good knowledge of living in Australia, primarily through the length of time the applicant has been in Australia and has a good understanding of the proposed course of study, his education services provider and his current study and living arrangements in Australia, which he intends to continue through the further study until 30 August 2019.

3. The applicant’s proposed course of study is a progression to his previous qualifications attained in Australia at diploma level, but a regression in relation to the initial tertiary qualification that the applicant commenced in Brazil but did not complete and is also in a different field of study from the applicant’s desired profession, which he intends to pursue on returning to Spain in early childhood education and care.

4. The applicant’s career intentions are now different from his original plan when he travelled to Australia to attain English and business qualifications and he seeks to undertake a career in early childhood education and care. The qualifications the applicant has obtained in completing the Diploma of Early Childhood Education and Care allows the applicant to pursue those career aspirations and goals without delaying his period of residence in Australia further for a course that the Tribunal considers provides him limited further value, in terms of improving his employment prospects in childhood education, given the time, investment and the money that has been invested in the applicant’s education in Australia to date.

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1. The Tribunal does consider the applicant’s course selection and changes to his field of study and career are reasonable, but the applicant’s proposed course of study was not contemplated at the time he travelled to Australia and his study for an Advanced Diploma of Leadership and Management is unnecessary for him to undertake his stated career goals and intentions to return to find a job in the childcare industry or the childhood education and care industry in Spain. The applicant’s evidence in relation to the remuneration he expects to receive in Spain is speculative and made on the basis of research, but it is comparative to what he earns in Australia in his chosen career on a part-time basis.

2. In considering the value of the proposed course of study to the applicant’s future, the Tribunal finds:

   a.The applicant’s course of study is a progression to the qualifications that he had obtained in Australia, but a regression to the tertiary qualifications he commenced in his home country but did not complete, and is a different set of qualifications to those he originally intended to obtain when he travelled to Australia.

   b.In considering the applicant’s previous history of employment, the qualifications already obtained by the applicant, the reasons given for changing fields of study and the lack of any meaningful steps taken by the applicant in relation to prospective employment or plans for his return to Spain, the current proposed course of study is of limited value to the applicant and the course is not relevant to the applicant’s original intentions in relation to travelling to Australia and is not necessary for him to undertake a career or to find an entry position in childhood education and care, given he has obtained the specific qualifications necessary to undertake those positions.

   c.The Tribunal accepts that the change in the applicant’s career paths are reasonable, but the reversion back to business studies after completing those specific qualifications in early childhood education and care, suggests that he course of study is being undertaken for the primary purpose of maintaining his residence in Australia, rather than for the purposes of pursuing the aspirations that the applicant told the Tribunal that he had, in relation to pursuing a career in the early childhood education industry.

   d.The remuneration the applicant can expect in his home country is comparatively less to Australia when considering that the applicant works part-time in Australia and the salary or remuneration the applicant may receive in Spain is speculative and based on a full-time working position.

   e.There is no evidence before the Tribunal in relation to the comparative remuneration the applicant would receive in Australia and Spain and/or Brazil and the Tribunal makes no findings in that regard.

1. Other than the applicant’s immigration history set out in the delegate’s decision record and the applicant’s travel to a number of countries as set out in the response to the Tribunal, which includes travel to Vietnam, France, Spain, Netherlands, Italy, Spain, Portugal and Malaysia, the applicant has not applied for any other visas in Australia or to any other country. The applicant returned to Brazil in 2011 and 2016 to visit family. The applicant has not been subject to any visa cancellation or refusal, other than the subject visa application presently before the Tribunal.

2. The applicant has spent a long period of time in Australia undertaking a series of vocational education and training courses. The Tribunal was concerned that the applicant was enrolling in these vocational courses for the primary purpose of maintaining his residence. In his response to the Tribunal, the applicant told the Tribunal in relation to his course in early childhood education and care, he wanted to work with children, which suits him better

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than any other business course. The applicant, since completing that course, has sought to undertake another qualification or a further qualification in business related studies.

1. While the applicant told the Tribunal that the course that he is currently undertaking would be an additional benefit, in terms of being involved in the management or the administration of childcare centres, as opposed to directly being involved in childcare education. The Tribunal considers that given the applicant’s experience already obtained in Australia that experience is likely to provide him a greater benefit in terms of seeking employment than obtaining a further course of study which is of limited value to the applicant.

2. In considering the applicant’s immigration history for the purpose of this application, the Tribunal finds:

   a.Other than the matters set out in the delegate’s decision record, the applicant has not applied for other visas to Australia and there is no undecided refused or cancelled visas to Australia or other countries.

   b.Other than the travel set out in these reasons for decision, the applicant has not travelled to other countries from Australia, or to Australia from other countries, since arriving in 2009 and the applicant has not been subject to visa cancellation or non­compliance.

   c.The applicant has spent a significant period of time in Australia and undertaken a series of vocational courses in different fields of study since 2009. The applicant’s proposed course of study would extend the applicant’s temporary residence in Australia to almost 10 years. The applicant has completed specific qualifications in his chosen industry and on completion of the Diploma of Early Childhood Education and Care, was in a position to return to Brazil or to Spain to seek employment and pursue his aspirations and goals within his chose field. The Tribunal considers the applicant’s current course of study to be of limited value in improving the applicant’s employment prospects.

   d.In considering the matters set out in these reasons for decision, in particular, the applicant’s time spent in Australia, the changes to and pattern of enrolment, the applicant’s qualifications obtained since 2009, the absence of arranged or prospective employment, and the limited value of the applicant’s current course of study in relation to improving employment or his career aspirations, the applicant is using his student visa primarily to maintain ongoing residence in Australia.

3. The applicant is not a minor and it was not necessary to consider the intentions of his parent, legal guardian or spouse of the applicant. There was no evidence before the Tribunal in relation to these matters and the Tribunal makes no such findings.

4. As required by Ministerial Direction No. 69, the Tribunal invited the applicant to make submissions in relation to any other relevant matter for the purposes of assessing the application. No other relevant matters that have not been considered in these reasons for decision were raised. The secondary applicant gave evidence and told the Tribunal that the applicant struggles with studies and he was lost at the beginning of his training but he is committed to completing his studies for his advanced diploma and returning to Spain.

5. The secondary applicant told the Tribunal this has had a huge emotional effect on both herself and the applicant and that delayed or caused difficulty in relation to both the length of study and time taken to complete certain courses and the variations or reasons for study and change in study. The secondary applicant told the Tribunal that she misses her family and has obtained a position as a managing director to return to when she travels back to Spain.

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1. The Tribunal had regard to the secondary applicant’s evidence and all the factors in Ministerial Direction No. 69 in considering the applicant’s circumstances as a whole and in making its findings and it is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet clause 500.212(a).

2. For clause 500.212 to be satisfied, paragraphs (a), (b) and (c) must all be satisfied. Given the Tribunal has found that paragraph (a) is not met, it is not necessary to consider paragraphs (b) and (c). Accordingly, the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student, as required by clause 500.212.

3. Given the above findings, the Tribunal finds 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.

4. As the applicant does not satisfy the criteria for the grant of a Subclass 500 visa, the Tribunal finds that the second named applicant does not satisfy clause 500.311, because she is not a member of the family unit of a person who holds a Subclass 500 visa granted on the basis of satisfying the primary criteria.

5. The Tribunal therefore affirms the decision not to grant the applicants a Student (Temporary) (Class TU) visa.

   DECISION

6. The Tribunal affirms the decisions under review.

   Glenn O'Brien
   Member

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