Possidonio da Silva (Migration)

[2024] AATA 3081

Possidonio da Silva (Migration) [2024] AATA 3081 (18 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Bruna Possidonio da Silva

CASE NUMBER:  2306267

HOME AFFAIRS REFERENCE(S):          BCC2023/1273798

MEMBER:David Thompson

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 July 2024 at 10:24 am (WA time)

DATE OF WRITTEN RECORD:                8 August 2024

PLACE OF DECISION:  Perth

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 08 August 2024 at 12:56pm

CATCHWORDS  
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – economic ties with her home country – no particular personal ties in Australia – has studied consistently and without any significant gaps since she applied for her student visa – applicant is enrolled in a course of study – course of study will be of value to the applicant’s plans – satisfied that the applicant is a genuine applicant for entry and stay as a student –– decision under review remitted 

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 April 2023 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 18 July 2024 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. The applicant in this case is a citizen of the Federative Republic of Brazil.  She arrived in Australia on 21 November 2022 as the holder of a visitor’s visa. She has since applied for the grant of a student visa in order to enable her to study courses in English and in Individual Support and Community Services.

4. I should note that, at the time she made her student visa application, the applicant was enrolled in a Certificate III and Certificate IV in Business, and much of her application as provided to the Department focused on those courses.  However, for reasons that the applicant has explained in the course of this hearing she has changed her study plans and is now enrolled in a Certificate III in Individual Support.  She plans to go on to study a Diploma of Community Services before returning to Brazil.

5. The applicant has now been in Australia for approximately one year and eight months and has not left the country since she arrived.  I took evidence at hearing as to the applicant’s circumstances in her home country. I am satisfied by the applicant’s oral evidence that she has strong personal ties with family and friends in her home country, although little in the way of community ties as such (if it is possible to distinguish between the two).  I am satisfied that the applicant’s personal ties to her home country give her a significant incentive to return there when she finishes her studies in Australia.

6. The applicant gave evidence that she completed high school in Brazil and started on a degree course in nutrition, but only completed six months of it.  She gave evidence of an extensive work history in Brazil, which includes time spent caring for her elderly mother, a matter of some significance.

7. The applicant currently derives an income working as an online influencer with some partnerships with certain stores in Brazil. She is able to do that wherever she is in the world and is deriving income from it whilst in Australia.  The applicant also gave evidence that she has property in Brazil in the form of an apartment and a block of land, and has provided some documentary evidence to the Tribunal in support of that statement.  That being the case, I accept her evidence in that regard.  She also has an asset in a form perhaps unknown in Australia, which appears to be a hefty deposit towards a motor vehicle that she is yet to purchase.  I find that the applicant has economic ties with her home country that would provide her with an incentive to return there on the completion of her studies in Australia.

8. The applicant has given evidence that she has no military service obligations and no concerns regarding civil or political unrest in her home country.  As to the first of those points, I accept her evidence, noting country evidence that reveals to me that military service in Brazil is restricted to males.  The second point is a matter of subjective impression and I accept the applicant’s evidence that she personally has no concerns regarding civil or political unrest.  These matters will not provide her with any incentive to avoid returning to Brazil.

9. I asked the applicant at hearing whether she would be able to study equivalent courses in Brazil. Her evidence was that the only equivalent course to the complete course of studies she intends to undertake in Australia would be a bachelor’s degree level course that would take four years to complete.  She therefore has chosen to attempt to study in Australia and complete her qualifications in less time than that, at the same time improving her English, which she says will give her opportunities in larger companies as well as in working with individuals and smaller concerns.

10. Taking all of these matters together, I am satisfied that the applicant's circumstances in her home country support her claim to be a genuine temporary entrant.

11. I took evidence from the applicant regarding her situation in Australia. She stated that she has no family in Australia and no community ties either.  There is no evidence before me to suggest otherwise and I accept the applicant’s evidence on these points.  I find that the applicant has no particular personal ties in Australia that would provide her with any incentive to remain here once she finishes her studies.

12. The applicant gave evidence that she has no assets in Australia, and has not been working in this country as she does not have permission to do so on her current visa.  I have already said that the applicant continues to derive an income from work based in Brazil. I do not consider that to be work in Australia,  and therefore I accept the applicant's evidence in this regard as well.

13. The applicant gave evidence that she has not entered into any relationship in Australia.  There is nothing before me to contradict that statement and I accept it. It follows that the applicant has not entered into any relationship of concern, in the sense of a relationship contrived or contracted to obtain a better visa outcome than would otherwise be possible or likely.

14. There is no direct evidence before me that the applicant is simply using the student visa system to maintain residence, or to circumvent the intentions of the Australian migration program in any other way.  The applicant gave evidence as to the manner in which she chose her course provider, and I am satisfied that she has made the kinds of enquiries and research that one would expect of a person genuinely intending to study, and not in Australia for some ulterior purpose.

15. The applicant gave evidence that she came to Australia in order to explore the country as a visitor.  There is no evidence before me that she made any particular preparation for life or study in Australia,  but I do not find that to undermine her claim to be a genuine temporary entrant as it is consistent with what one would expect of a person who arrives as a tourist.

16. Taking these matters together, I am satisfied that the applicant’s potential and actual circumstances in Australia support her claim to be a genuine temporary entrant.

17. Turning to the issue of the value of the applicant’s courses, I note that the applicant has not regressed in her educational level in any way in taking on her courses in Australia.  She stated that her plan is, when she finishes those courses, to return to Brazil and to find work in the personal services area, which will, she says, yield an income of approximately AUD 3,224 per month.  The applicant’s evidence is that she has found that information on job websites and through personal connections working in the area.  I note that her plan is directly consistent with the courses she has undertaken and appears to be a realistic plan that would yield her somewhat above the average income in Brazil.  No doubt the applicant will continue her activities as an influencer at the same time to supplement her income.  I find that the applicant’s courses have a real value for her on her return to her home country and that this supports her claim to be a genuine temporary entrant.

18. I turn now to the issue of the applicant’s immigration history.  She gave evidence of extensive travels in Switzerland, Dubai, Egypt, South Africa, Chile, Qatar, Mozambique, Singapore and Malaysia.  She gave evidence that she has never previously been refused a visa, has never had a visa cancelled and has no other visa applications on foot in Australia.  There is nothing before me in the documents to contradict any of those claims and I accept them.  There is no evidence before me to suggest that the applicant has breached the immigration laws of Australia or any other country.

19. The applicant has been in Australia now for approximately one year and eight months, as I had said. That is not an excessive period of time for someone who is genuinely remaining in Australia to study, and I note that the applicant’s record of studies shows that she has studied consistently and without any significant gaps since she applied for her student visa.  All of these matters provide support to her claim to be a genuine temporary entrant. 

20. Taking all of the matters I have discussed together, I am satisfied that the applicant meets the requirements of clause 500.212(a) of Schedule 2 to the Migration Regulations.

21. I must also consider whether she meets the requirements of subclause (b). That subclause requires me to be satisfied that the applicant will comply with any conditions that have been placed on her visa. The applicant gave evidence at hearing that she was aware of the fact that conditions would be imposed and of the nature of those conditions, and gave a positive undertaking to comply with them. There is no evidence before me to suggest that the applicant has any history of non-compliance with visa conditions. I am satisfied on that basis that the applicant meets the requirements of subclause (b) of the clause 500.212 of schedule 2 to the Migration Regulations.

22. Under subclause (c), I am also required to consider any other relevant evidence that arises in the oral evidence or in the documents before me.  I find that no other relevant matter arises that I need to consider. 

23. That being the case, I am satisfied that the applicant meets the requirements of clause 500.212 of Schedule 2 to the Migration Regulations. The correct disposition of this matter is, therefore, to set aside the delegate's decision and to remit the matter to the Department for further consideration, with a direction that the applicant meets the requirements of clause 500.212. Those are the orders that I make.

    DECISION

24. The Tribunal remits the decision under review for reconsideration with the direction that the applicant meets the requirements of cl 500.212 of Schedule 2 to the Regulations.

    David Thompson
    Member