Nishimura (Migration)

[2018] AATA 3187

Nishimura (Migration) [2018] AATA 3187 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luis Marcelo Nishimura

CASE NUMBER:  1802983

HOME AFFAIRS REFERENCE(S):           BCC2017/3372566

MEMBER:M. Edgoose

DATE:2 August 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 02 August 2018 at 9:17am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –Genuine temporary entrant criteria –Completed a range of courses irrelevant to career goals – Lack of detail of further plans in home country –  Lived in Australia and Japan for approximately 20 years – Use of student visa to maintain ongoing residence in Australia

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499

Migration Regulations 1994 (Cth), Schedule 2 cls 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 on 15 January 2018 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 for the visa on 15 September 2017. 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.

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 the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared via telephone before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an accredited interpreter in the Portuguese and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

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; 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?

8. 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.

9. 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 and applicant’s immigration history

10. The applicant gave evidence at hearing that he is from Brazil and first arrived in Australia on 22 November 2006 on a student visa and completed a Certificate IV in Business on 21 December 2007 (DIBP Folio 41). The applicant has completed a range of further studies since arriving in Australia.

11. The applicant applied for the visa on 15 September 2017 and the delegate refused to grant the visa on 15 January 2018 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

12. The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history. The applicant informed the Tribunal that before coming to Australia he had lived in Japan for nine years and he has also visited Canada and Indonesia. His last visit to Japan was in 2017. The applicant stated he has never returned to Brazil since departing in the late 1990s and that he has complied with the migration laws of the country’s he has visited and their relevant visa conditions. The applicant’s sister came to visit him in 2010 and stayed for a period of three weeks. The Tribunal notes that the applicant stated he has a permanent visa for Japan and the Tribunal gives little regard to the applicant’s travel movements.

13. The applicant said to the Tribunal his only issue of concern back in his home country is that “right now it currently isn’t in good shape but he is still not losing any sleep over it”. The Tribunal gives little regard to this statement considering the applicant has not returned personally to his home country since the late 1990s.

    The applicant’s circumstances in their home country

14. The Tribunal has considered the factors in clause 9 of Direction 69 with respect to the applicant. The applicant informed the Tribunal that he had completed high school, an electronic technician course and one year of an electronic engineer course before he moved to Japan with his father and sister. Before moving to Japan the applicant told the Tribunal that he had worked as an intern for one year in Brazil and in Japan he had worked as a quality inspector in a factory that manufactured television tubes. The applicant could not recall how much he was paid for his various jobs.

15. The applicant told the Tribunal that his parents and sister are back in Brazil. The applicant’s father is retired, his mother was a housewife and his sister works as a manager. The applicant informed the Tribunal that he has not seen his mother since he left Brazil nearly 20 years ago but they speak every week and his mother has insisted that he stays where he is and seeks what he is looking for. The applicant told the Tribunal that he has been able to manage personal relations with his parents and sister back in Brazil while living in Australia by making contact on a weekly basis by telephone and the social media application WhatsApp. In these circumstances, the Tribunal does not consider the applicant’s personal connections overseas as a distinct incentive for the applicant to cease residence in Australia.

16. The applicant informed the Tribunal that it is his responsibility to look after his parents with his sister and that he will go back home to help her. The applicant has had many opportunities over the 11 years he has been in Australia to return to Brazil to take care of his parents. The Tribunal gives little regard that the applicant genuinely intends to depart Australia and return to Brazil to share the responsibilities of taking care of his parents.

    The applicant’s potential circumstances in Australia

17. The applicant submitted to the Tribunal and the Department a Confirmation of Enrolment for an Advance Diploma of Business through the Western Australian College International (AAT Folio 124, DIBP Folio 42) that commenced on 28 May 2018 and is due to be completed on 24 May 2019. The applicant told the Tribunal that the Advance Diploma of Business is more about case studies and getting in touch with business terms and how businesses operate and that by completing this course it will improve his skills and knowledge in the area. The Tribunal considers the applicant has already attained the relevant qualifications to pursue his future career plans and that he is prolonging his stay in Australia and the Tribunal finds the student visa is being used by the applicant to maintain ongoing residence in Australia.

18. The applicant submitted to the Tribunal and the Department certificates for the following courses:

    a.Diploma of Project Management dated 9 April 2018 (AAT Folio 1 to 5)

    b.Diploma of Business dated 15 August 2017 (DIBP Folio 50)

    c.ACS Professional Year Program dated 9 May 2014 ( DIBP Folio 51)

    d.Certificate III in Business dated 1 April 2014 (DIBP Folio 48)

    e.Bachelor of Information Technology dated 14 December 2011 (DIBP Folio 39)

    f.Certificate IV in Business dated 21 December 2007 (DIBP Folio 41)

19. The applicant informed the Tribunal that he currently works up to 20 hours per week part-time for Deliveroo and Uber Eats and earns between AUD $400 and AUD $600 depending on the amount of hours he works. Prior to his current employment the applicant worked for a rental car agency. The applicant currently lives by himself and pays AUD $280 per week for rent, owns his own vehicle and is currently single. The applicant also receives regular financial support from his family back in Brazil.

20. The Tribunal requested the applicant submit his tax assessments for the financial year ending 30 June 2012 until financial year ending 30 June 2017.

    a.Taxable income for year ended 30 June 2012 was AUD $30,931 (AAT Folio 137b)

    b.Taxable income for year ended 30 June 2013 was AUD $34,452 (AAT Folio 135b)

    c.Taxable income for year ended 30 June 2014 was AUD $22,990 (AAT Folio 133b)

    d.Taxable income for year ended 30 June 2015 was AUD $29,691 (AAT Folio 131b)

    e.Taxable income year ended 30 June 2016 was AUD $23,714 (AAT Folio 130b)

    f.Taxable income year ended 30 June 2017 was AUD $246 (AAT Folio 129b)

    The Tribunal makes no adverse finding against the applicant’s taxable income from 30 June 2012 until 30 June 2017. As mentioned in paragraph 22 the applicant has approximately AUD $108,969 in a Brazilian bank account as at 31 January 2018 and has been able to support himself financially during his 11 years in Australia.

21. The Tribunal has had regard to the letter the applicant submitted to the Department dated 13 September 2017 (DIBP Folio 43) which stated that he has successfully completed a Diploma of Business and that he would like to complete his qualifications and that his goal is to obtain a position in the systems development department back home in Brazil. His aim is to obtain a job at Embraer which is a Brazilian aircrafts producer in the applicant’s hometown and that having a high level of English and international qualifications is a must to comply with the international standards and to use international systems. His parents are pushing for him to complete his studies before returning home and that his sister is currently looking after them.  He would like to obtain a really good job that will make them proud. The Tribunal gives little regard to the applicant’s statement considering he could have returned to Brazil some time ago and put his career aspirations into action and to share with his sister the responsibility of taking care of his parents.

22. The Tribunal has had regard to the GTE statement the applicant submitted to the Tribunal dated 31 January 2018 (AAT Folio 24 – 29) which provided the applicant’s personal bank balance of Brazilian Real $302,800 and his tax return in Brazil from 2017; his family situation back home; the reason for why his parents are pushing for him to continue with his studies; an explanation for the change in his career direction; that he has remained lawfully in Australia since arriving; that the job market in Brazil is extremely competitive and employers highly value people with international experience both professionally and academically; and that when he returns home he would like to work for Embraer; however, his ultimate aim is to gain work in a Brazilian company which pays a high salary and high benefits. The Tribunal notes that the Brazilian Real of $302,800 when converted in Australia dollars on 2 August 2018 was AUD $108,969.

    Value of the course to the applicant’s future      

23. The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant. The applicant said to the Tribunal that the value of his current course of study to his future plans will provide him with real case studies of life and actual business experiences and that having this qualification will assist him in gaining employment back in Brazil. The applicant plans to find a management job in a national company back in Brazil or he will start some projects with friends. The applicant, when pressed by the Tribunal was not able to elaborate further about his future plans back in Brazil and the Tribunal has significant concerns about the applicant’s future plans. The Tribunal does not accept that the applicant’s future plans are back in Brazil considering he has lived in Japan and Australia for approximately the past 20 years. The Tribunal finds that student visa program is being used by the applicant to prolong his already substantial stay and to circumvent the intentions of the migration program to maintain ongoing residence in Australia.

24. The Tribunal has considerable concern that after completing his Bachelor of Information Technology in December 2011 the applicant pursued and completed a range of low cost certificate and diploma level VET courses in the business and project management fields that were not relevant to his Bachelor of Information Technology. The applicant had the opportunity to undertake a Bachelor course in the business or project management fields that would have been consistent with gaining a further degree at the university level of education and chose not to do so. Instead the applicant has maintained enrolment in low level and low cost VET sector courses and the Tribunal finds the applicant is using the student visa programme to circumvent the intentions of the migration programme.

25. The applicant when asked by the Tribunal why he had not completed these studies back in his home country stated that the quality of the courses available in Australia compared to Brazil a much better and that having an international qualification back in Brazil was highly recognised. The Tribunal pressed the applicant further about his current knowledge of the Brazilian education system considering he has not returned to his home country for approximately 20 years. The Tribunal considers that the applicant’s future plans do not lie outside of Australia and the Tribunal finds that the applicant is using the student visa to maintain ongoing residence in Australia.

26. The Tribunal considers the applicant has had the opportunity on numerous occasions to depart Australia and returned to Brazil. The applicant claimed that he has been able to remain in touch with his family and friends back in Brazil and that this has been made easier over time with the advancement of technology. The Tribunal does not accept that the applicant is a genuine temporary entrant and that he is maintaining enrolment in courses of study for the purposes of meeting the requirements of the student visa so that he can maintain ongoing residence in Australia.

27. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, significant ties in Australia, remuneration the applicant could expect to receive in the home country compared with Australia, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

28. Taking into account the considerations indicated by Direction 69 as they are relevant to the matters before the Tribunal and on the basis of the above; the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

29. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

30. Given the above findings, the Tribunal finds that 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. Accordingly, the decision under review must be affirmed.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    M. Edgoose
    Member