Miranda de Bonis (Migration)

[2018] AATA 1905

Miranda de Bonis (Migration) [2018] AATA 1905 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lucca Miranda de Bonis

CASE NUMBER:  1700169

DIBP REFERENCE(S):  BCC2016/3369569

MEMBER:Meredith Jackson

DATE:10 May 2018

PLACE OF DECISION:  Brisbane

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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 10 May 2018 at 9:08am

CATCHWORDS
Migration – Student (Temporary) (Class TU ) visa – Subclass 500 (Student) – Genuine Temporary Entrant – Study path – Circumstances abroad – Scale of industry in home country – Demand for English language – Employment opportunities – Complementary courses – Family ties – References from education providers – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 499
Migration Regulations 1994, Schedule 2 cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 December 2016 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 11 October 2016. 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.

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 Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

The applicant appeared before the Tribunal on 2 May 2018 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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 applicant for entry to stay as a student because the applicant intends genuinely to stay in Australia temporarily.

Genuine applicant for entry and stay as a student (cl.500.212)

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?

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.

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.

BACKGROUND

1. The applicant is a 27 year old male citizen of Brazil.

2. His stated career plan is to become a freelance designer, to work in and help his father’s business, and, in the long term, potentially become a creative director in a design or related business in the creative industries sector in Brazil.

3. On 7 November 2013 the applicant first arrived in Australia as a student visa holder (TU-570) to study an English language course, which he completed in 2 May 2014. His initial intent was to acquire English competency to enhance his chances of getting a job in Brazil, where he had found a Bachelor degree was not enough, that he would need English ability because it was prized by employers and he was at a disadvantage in the job market without it.

4. After completing the initial UFO English course he applied the applicant was granted two additional Student visas for further stay as a student, to study at a vocational level.

5. In the period between June 2014 and August 2016, the applicant completed a Certificate III in Media, with attainments in screen and other visual design and editing competencies, and a Certificate II in Business. He also completed a Diploma of Marketing and an Advanced Diploma of Marketing at a Gold Coast based education provider.

6. On 11 October 2016 the applicant lodged an application for a Subclass 500 (Student) visa to study English and a Diploma Graphic Design and was granted a Bridging Visa (WA-010). He proceeded to study and completed an 8 week General English Condensed course on 9 December 2016.

7. On 19 December 2016 the delegate refused to grant the visa, having found the applicant unable to provide convincing testimony as to the relevance of his courses to his past experiences and future career goals.

8. On 4 January 2017 the applicant lodged an appeal for a review of the decision and was granted a Bridging Visa (Class WA-010).

9. On 31 January 2017 while on this Bridging visa the applicant commenced and completed a Diploma of Graphic Design at TAFE Queensland.

10.  The applicant then enrolled in an Advanced Diploma of Graphic Design at Mindroom Innovation, a Gold Coast education provider, where he proceeded to study. At the time of this decision, the applicant remains enrolled in that course, which is of 78 weeks’ duration and due to be completed in 26 July 2019.

11.  The applicant provided evidence of Overseas Student Health Cover with BUPA paid until October 2019.

12.  The applicant also provided the Tribunal with written submissions to support his case for further stay and study. These included evidence of his course completions, course details and payment schedules, enrolment evidence for his current Advanced Diploma of Graphic Design, evidence of his father’s confectionary business registration, a letter of work opportunity from Brazil and a graphic design portfolio. He also provided two positive references from education providers, being one from his current provider regarding regular payment performance and another from TAFE Queensland regarding a diligent study performance and very high work standards.

13.  In addition he provided evidence of his Bachelor Degree in Social Communication from PUC Campinas, a Catholic University in Campinas, Brazil, a program he completed before coming to Australia.

14.  The Tribunal is mindful that the delegate’s decision not to grant the visa placed substantial weight on an interview with the applicant conducted by the department on 29 November 2016.  The delegate found within that:

a)the applicant was unable to providing convincing testimony as to the relevance of his courses to his experiences and career goals;

b)the applicant did not demonstrate how his study in Australia would improve his career prospects in his home country;

c)the applicant had “decided to change career path” from marketing to graphic design;

d)the presence in Australia of his Brazilian partner, also a student visa holder, was a significant reason not to return home on completion of further study; and

e)the main objective of the applicant’s study was to maintain residence in Australia

15.  The Tribunal has considered the delegate’s findings and considered also the submissions and statements made by the applicant to the Tribunal on review.

16.  In reaching its decision, the Tribunal has had regard to all the specified matters in Direction 69 and taken into account other relevant matters raised by the applicant. These included the scale of service industries in Brazil, the countries’ population size and relevant economic performance compared with that Australia, the convergence of creative and business skills in the digital era, and the demand for English language competency within creative industries such as design, communication and media. The Tribunal found convincing the applicant’s submissions that:

a)    His initial reason to study in Australia, to learn English, would afford him a job advantage in Brazil and that without it, in his field of communication and creative industries, he would be less competitive;

b)    He has strong familial reasons to return home after studying, including the fact that all his family are there, including his parents, his 95 year old grandmother and an uncle with special needs;

c)    His partner is also Brazilian and while she has joined him in Australia and is studying here on a Student visa, she wishes to return to Brazil with him;

d)    The applicant has no familial ties in Australia that might dissuade him from returning home on completion of his studies;

e)    His course choices are coherent and consistent with his preferred future in creative industries in Brazil, ultimately as a creative director, that they build upon his Brazilian Bachelor degree, their content is complementary and provide competencies that will aid his career ambitions;

f)     His career prospects in Brazil exceeded his opportunities in the same industries in Australia because of the scale of the industry there;

g)    He has applied for no visas other than Student visas while in Australia and had only travelled as a tourist elsewhere to a limited extent;

h)    He intends to return home at the end of his Advanced Diploma and not pursue a Bachelor degree here because he already has a relevant one;

i)   The applicant’s father was helping him financially to enable study; and

j)    He was a reliable and diligent student.

17.  The Tribunal, when taking into account the whole of the evidence before it, finds it does not agree with the delegate’s view that the applicant is utilising the Student visa program as a means of circumventing Australia’s migration program to acquire ongoing residency in Australia on temporary short stay visas.

18.  The Tribunal accepts that the applicant’s career path is not immediately a coherent one, and this might well prompt a view that the courses he has selected since arriving in Australia are not in related fields leading to a single career outcome. However on closer examination it finds the applicant has consistently studied in complementary discipline areas, made evident by the evolving nature of creative industries in the digital age and the well-established convergence of business and creative competencies within those industries. Therefore it finds the applicant’s study choices reasonable and notes Direction 69 requires decision makers to allow for reasonable changes to career or study pathways. But even without regard to this flexibility, it finds that the courses the applicant has pursued at vocational level build on his Social Communications Bachelor degree in that they give him specialised creative skills and create a logical pathway to a career in creative industries.  The Tribunal finds the applicant’s ambition to become a freelance designer and ultimately, a creative director in a design or brand agency in the creative industries in Brazil and is consistent with that end.

19.  The applicant argues that he intends to return to Brazil after studying, where opportunity in the field he seeks will be greater than in Australia, due to Brazil’s larger population and a greater number of international brands that are marketed there. The Tribunal has had regard to Austrade information, which provides that Brazil has sophisticated industry and services sectors, a large population (206 million in 2017), economic weight as the world’s ninth largest economy with GDP of US$2.1 trillion in 2017, and a growing middle class.  (Australia’s GDP is recorded as $1.4 trillion and its population at 24.4 million).

20.  Without having attempted to analyse the creative industries sector’s weight in Brazil compared with that in Australia, the Tribunal finds the delegate’s statement about the “economic situation in Brazil compared to the comparatively greater economic opportunities in Australia” to be unsubstantiated in the context of this case.

21.  The Tribunal having considered all the information before it, particularly those matters laid out in Direction 69, finds that the applicant’s study path to coherent and consistent with his career ambition. It finds convincing the applicant’s statement that his reasons to return to Brazil outweigh his motivations to remain in Australia. And while it finds his submission regarding a future job opportunity in Brazil serves only to indicate he is connected with someone in the creative industries, rather than being evidence of a job on his return, it finds merit in his study path as a means of getting to his goal.

22.  On balance the Tribunal finds it reasonable to extend to the applicant a chance to complete the Advanced Diploma of Graphic Design in which he is enrolled, and to accept his assertion that he will leave Australia at the completion of this current phase of his studies and not seek a further student visa for a Bachelor degree or any other program.

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?

23. 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.

24.  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).

25.  As stated earlier in these Reasons, the applicant provided the Tribunal two positive references from education providers; one from his current provider regarding regular payment performance; and one from TAFE Queensland regarding a diligent study performance and very high work standards. The Tribunal has considered this and other relevant matters described earlier in these Reasons, including his study progression, and finds no evidence before it that the applicant has not complied with the conditions of his previously and currently held visas, nor that he intends not to comply in the future.

26. 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).

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.

28.  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

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.

Meredith Jackson
Member