Neves da Silva (Migration)

[2022] AATA 2591

Neves da Silva (Migration) [2022] AATA 2591 (4 July 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wesley Neves da Silva

REPRESENTATIVE:  Mrs Monica Sofia Fernandes (MARN: 1463596)

CASE NUMBER:  2003547

HOME AFFAIRS REFERENCE(S):          BCC2019/6481892

MEMBER:Vanessa Plain

DATE OF DECISION:  4 July 2022

DATE CORRIGENDUM

SIGNED:9 August 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

- In paragraph 4, replace ‘an Indonesian woman’ with ‘a Brazilian man’

Statement made on 09 August 2022 at 12:20pm

Vanessa Plain
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wesley Neves da Silva

REPRESENTATIVE:  Mrs Monica Sofia Fernandes (MARN: 1463596)

CASE NUMBER:  2003547

HOME AFFAIRS REFERENCE(S):          BCC2019/6481892

MEMBER:Vanessa Plain

DATE:4 July 2022

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 04 July 2022 at 11:12am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applied after arriving on visitor visa – further documentation provided to tribunal – understanding of course requirements and academic progression – value of course to applicant’s future – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(a)
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 (Cth) (the Act). The applicant applied for the visa on 5 December 2019. The delegate refused to grant the visa on 4 February 2020.

2. The delegate made the decision, in whole or substantial part, on the basis that evidence of:

   ·Previous study history

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

   ·An explanation as to how the Australian qualification would benefit their future remuneration level significantly enough to outweigh the significant cost and commitment the courses would require while 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. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the new material before it, pursuant to s 360(2)(a) of the Act.

4. The delegate’s decision record reveals that the applicant is an Indonesian woman who first arrived in Australia on 25 October 2019 utilizing a Visitor Visa.  The delegate held concerns that the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia, rather than due to a genuine desire to undertake the course of study.  The delegate was not satisfied that the applicant had sufficiently explained his reasons for his change in migration pathway so shortly after arriving in Australia on a Visitor Visa.  For this reason, coupled with the lack of information referred to above, the delegate determined that the applicant was not a genuine entrant.     

5. The applicant provided the following documents to the Tribunal:

   • COEs for a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis 

   ·    A GTE statement

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

   ·    A suite of academic documents evidencing course attendance and grade attainment and course completion in Australia and overseas

   ·    Legal submissions

6. The Tribunal has considered the documents produced by the applicant. 

7. The Tribunal finds that the applicant is not utilising the student migration program to obtain long term residency.  Although the Tribunal notes that the applicant has changed his migration intention shortly after arriving on a Visitor Visa, at the time of this decision the documentation before the Tribunal (including a PRISMS record in addition to the material provided by the applicant) clearly establishes that the applicant has, since changing his migration direction, attended class, progressed academically and wholly successfully completed his studies in English.  He is now enrolled in a Certificate III in automotive studies.  This is the applicant’s first student visa application and the documents produced demonstrate that he has a thorough understanding of his course objectives and has investigated studying similar courses in his home country.  The applicant has strong family ties to Brazil, modest family ties to Brazil and is aware of his circumstances and visa conditions in Australia.  The Tribunal places weights on these factors as being indicative of the applicant being a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

8. The Tribunal further finds that the applicant has in his GTE statement reasonably demonstrated the value of the course to his future to an extent that outweighs the current cost of completing the course.  It is further satisfied that the applicant does not have an adverse immigration history in Australia.     

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