Rio Lima junior (Migration)

[2017] AATA 2400

Rio Lima junior (Migration) [2017] AATA 2400 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alan Leoncio Rio Lima junior
Ms Alessandra Da Silva Claro

CASE NUMBER:  1515312

DIBP REFERENCE(S):  BCC2015/2808180

MEMBER:Gabrielle Cullen

DATE:13 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 13 November 2017 at 11:10am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Business in Brazil run by sister – Only completed short courses – Slow rate of course progression – Lack of knowledge of future course – Inconsistent evidence –Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223, 573.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 22 September 2015. The delegate decided to refuse to grant the visas on 6 November 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. Movement records indicate that the first named applicant (the applicant) arrived in Australia on a subclass 570 visa on 28 February 2012 valid to 10 September 2012. He was granted a further subclass 570 student visa to 19 December 2013 and then a subclass 572 visa to 30 September 2015. He applied for the visa to which this application relates on 22 September 2015.

4. Certificate of Enrolments attached to the applicant’s application refer to the applicant studying a Certificate IV in Business Administration and a Diploma of Business. Information submitted indicates he successfully completed these courses and is now currently enrolled studying an Advanced Diploma of Leadership and Management to finish on 8 December 2017. To the Tribunal he submitted a COE to study an IELTS preparation course from 8 January 2018 to 9 March 2018 and an offer of enrolment dated 27 October 2017 to study a Bachelor of Business from 14 March 2018 to 20 February 2021.

5. During the time the applicant has held student visas and the recent bridging visa the evidence, from the Department decision[1], the applicant at hearing and in documentation provided by the applicant, indicates he has been enrolled in and successfully completed the following courses.

   ·General English – 2012

   ·General English - 2013

   ·Upper Intermediate English – 2013

   ·IELTS Preparation Course - 2016

   ·Certificate IV in Business Administration – 2015/2016

   ·Diploma of Business - 2016

   [1] The Department decision was attached to the Application for Review.

6. The applicant in a statement to the Department dated 22 October 2015 claims that he came to Australia to reach fluency in English as his dream is to work as a commercial pilot. He claims after he finished the English courses he opened a business in his home country called Pe De Anjo Ltd in 2014. He claims he had another business from 2003 to 2012 but had to close it down as he did not feel confident to manage the business without qualifications. He claims that is why he decided to look at courses that would provide high level business skills. He claims the same courses in Brazil take 3 to 4 years but in Australia they are 1 year. He claims after he completes the Diploma of Business he is confident his business skills will be developed so he can return to his country and focus on his business. He provided certificates to indicate he had successfully completed English courses from 8 October 2012 to 1 November 2013. Also attached was a Business Registrations Certificate for the business, Pe De Anjo and articles of incorporation for this business.

7. The delegate decided to refuse to grant the visas on 6 November 2015. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned that despite being requested for evidence as to whether he is a genuine temporary entrant, he had not provided evidence of financial, family or social ties to his home country. He noted that while the applicant provided as evidence a Certificate of Business registration dated April 2014 he had not departed the country since November 2014 and it appeared that he is running the business from Australia. The delegate also took into account his study history and that he had only successfully completed three English courses since his arrival. The delegate was of the view that there were high level business courses in Brazil.

8. On 11 November 2015 the applicants lodged an appeal to the Tribunal and attached the decision of the Department. On 11 October 2017 the Tribunal wrote to the applicants and invited them to attend a hearing on 6 November 2017. The letter, among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 573.223(1)(a) and asked him to provide a written statement addressing this issue by referring to Direction 53, which was attached.

9. The applicant submitted an offer of enrolment to study a Bachelor of Business and a statement dated 27 October 2017 indicating why he has decided to now undertake a Bachelor of Business. He claims his ultimate goal in Australia was to learn English to better his professional opportunities upon return to Brazil. He claims not having completed formal level qualifications in Brazil he has always dreamt of completing a university degree. He claims it is crucial for anyone wanting to develop a professional career to possess formal qualifications at the highest level possible. He claims he aspires to return and to effectively implement the skills obtained in Australia. He claims while in Australia his sister has been running his photocopier, retailing, hiring and repair business, although he has been taking care of a few administration tasks. He claims for the past years he has devoted his life and efforts to learning English and to undertaking courses which give him the skills he currently possesses and to prepare him to undertake the Bachelor degree. He claims he is now enrolled in an IETS course as this is required by the education provider to undertake the Bachelor of Business. He claims he wants to study the Bachelor of Business in Australia as the course is shorter that studying it in Brazil. He outlines why studying in Australia is more beneficial than studying in Brazil. He claims since his arrival in.

10. Australia he has been dreaming of returning home as a university qualified professional.

11. A letter from Krla Verusca, who it is claimed is the applicant’s sister, dated 28 October 2017 was also submitted. This indicates that in the absence of her brother she has been taking care of the applicant’s small photocopier, retailing, hiring and maintenance business. Also submitted were completion certificates, an IELTS test indicating an overall score of 6 and financial documents, as well as other documents already mentioned above. He submitted evidence of registration of his business confirming it is a photocopy business.

12. The applicant appeared before the Tribunal by telephone on 6 November 2017 to give evidence and present arguments. The Tribunal raised with him that the matter before it is whether he meets the requirements of cl.573.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

13. As to his current study, the applicant indicated he is currently studying to achieve an Advanced Diploma of Leadership of Management which is due to finish in December 2017. The applicant provided evidence of the courses completed previously as outlined above. He indicated he finished the English courses in November 2013, the Certificate IV in Business at the end of 2015/early 2016 and the Diploma of Business in 2016. He said the Certificate IV in Business and Diploma of Business were approximately 6 months each in length. The Tribunal raised concerns, as outlined in more detail below, that in his over five years of study in Australia he had only successfully completed 4 short English courses and 2 short vocational courses. He said he was enrolled in an English course in 2014 but failed as his English was not good. He said he had to go to Brazil often in 2014/2015 as his mother was not well.

14. As to his education in Brazil, he indicated he only studied to the high school level. As to his work in Brazil, he said he worked for Xerox and then opened another company dealing with photocopiers which he closed down before coming to Australia. He said in 2014 he opened another business called Pe-De-Anjo which buys and sells photocopiers.

15. As to his work in Australia, he said for the last three years he has worked part-time at a car wash business.

16. As to his family, he said his mother and siblings are in Brazil. As to the second named applicant, he said they were in a de facto relationship but separated twenty days before the hearing. She did not attend the hearing.

17. He indicated that he wishes to study a Bachelor of Business and referred to the offer of enrolment submitted. He said he has not paid or formally accepted the offer. The Tribunal asked him numerous questions about the Bachelor of Business and raised concerns as to his lack of detail in this regard. Where relevant these have been outlined below. In response he said it was because he has ADHD.

18. It raised concerns that the Bachelor of Business course finishes in 2021 and that in total he would have been studying in Australia for nine years. It raised with him its concern he is using the student visa program to maintain migration. It questioned why he would pay the large fees to study a Bachelor of Business to enhance his photocopy business. He said the course fees were about $60,000.

19. As to why he wanted to come and study in Australia, he said he had a dream to learn English. He said after 6 months he realized he needed more time to study the language. He said when he opened the new company in 2014 he realized that he needed knowledge in financial business so he could grow the business into a solid company.

20. As to when he realized he wanted to undertake a Bachelor of Business he said at the end of 2016. He said in Brazil the same course would take 5 years and due to his age (born 1977) he wanted to finish the course quickly. He said in Australia he can finish it in 3 years. He said he wants to study this as it will help his business and he may have opportunities to be employed in a multi-national company. He said when he returns with his Bachelor he will start growing the business, importing photocopiers and be involved in international markets. The Tribunal questioned the rationale of undertaking a Bachelor of Business to improve the photocopy business when he had already completed a Certificate IV in Business and Diploma of Business. He said the Bachelor degree would give him a deep knowledge. He said it would further improve his English, increase his knowledge of business and of the international markets. He said it is also for personal reasons he wishes to achieve a university degree.

21. The Tribunal raised concerns as to the inconsistencies in his evidence, particularly as to his evidence at hearing and in his two statements submitted to the Department and Tribunal as to his reasons for studying. Where relevant these concerns have been outlined below.

22. It again raised concerns as to him wanting to spend 9 years studying in Australia. It raised its concern that this is particularly so as the evidence indicates he has been in Australia for 5 years only completing short range courses.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. Having regard to the applicant’s current proposed course of study, being an offer of enrolment to study a Bachelor of Business, the relevant subclass in this case is Subclass 573.

24. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

25. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

26. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

27. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

28. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Brazil. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts the evidence that the courses he has undertaken in Australia are considered as having a better reputation than there equivalent in Brazil and are of a shorter time frame. It accepts he will also be able to further improve his English while studying in Australia. The Tribunal accepts that he has close family ties in Brazil, including his mother and siblings. It accepts he returned to Brazil to visit his family in 2015, 2014, 2013 and 2012 as claimed. It accepts he has recently separated from his de facto partner, with whom he was living in Australia. It accepts he owns a photocopy business in Brazil which is being run by his sister. It accepts he has no family connections in Australia. It accepts that his circumstances in Brazil are indicative of a person who is only a temporary entrant and wishes to return to their country.

29. The applicant has submitted a COE to complete an IELTS preparation course and an offer of enrolment to study a Bachelor of Business from 14 March 2018 to 20 February 2021.

30. The Tribunal accepts that the applicant is currently enrolled in an Advanced Diploma of Leadership and Management which he will successfully complete in December 2017. It accepts he successfully completed three English courses from 2012 to November 2013, a Certificate IV in Business Administration in 2015/2016, an IELTS preparation course from October 2016 to November 2016 and a Diploma of Business in 2016. It accepts he has been enrolled in the courses he claims and completed the subjects in those courses he claims. However the successful completion of courses and subjects is but one of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

31. The above information indicates the applicant has been in Australia since February 2012, a period of approximately 5 years and 9 months. He has submitted an offer to study to February 2021, indicating he wishes to stay studying in Australia for 9 years. While not necessarily indicative that a person does not wish to remain in Australia temporarily, his length of proposed stay in Australia of 9 years studying is of concern and one of the considerations.

32. The Tribunal also views as significant that since his arrival in Australia in February 2012, a period of 5 years and 9 months his evidence is that he has only completed short courses at the vocational level. In particular, he has only successfully completed three English courses from 2012 to November 2013, and since, being a period of four years, one short IELTS preparation English course of two months (as per the Certificate submitted), a Certificate IV in Business Administration and Diploma of Business which the applicant said were both 6 months, full time courses, and the Advanced Diploma of Leadership and Management in 2017. The Tribunal views his slow progression, studying short courses over a four year period to be indicative of a person using the student visa to maintain residence rather than as a genuine student. In response, the applicant stated that his mother was ill in 2014 and he had to return to Brazil and while he attended the English course he was enrolled in during 2014, he did not pass the exams. The Tribunal does not accept this as explaining why when he was able to continue working in Australia and set up a business in Brazil in 2014 he was unable to successfully complete any courses in that period. Further in 2015 and 2016 the evidence he provided at hearing indicates he only successfully completed 2 six month vocational courses and a 2 month IELTS course. The Tribunal is of the view if he was and is a genuine student he would have focussed on his studies rather than setting up a business. The Tribunal views his slow rate of course progress to be indicative of a person using the student visa program to maintain residence and not indicative of a person who is a genuine applicant for entry and stay as a student.

33. The applicant now claims that he wishes to study a Bachelor of Business, on the face of it indicating course progression. In this regard he has submitted an offer of enrolment to study a Bachelor of Business at Kaplan College in Adelaide from March 2018 to February 2021. He has, however, not accepted the offer nor paid any amount to secure his place. While not determinative, the Tribunal views as significant and undermining his claims to be a genuine student and genuine in his claim to wish to study the Bachelor of Business his lack of knowledge as to this course. In particular, he could not name any of the subjects in the course and could not correctly indicate how much the course would cost. He incorrectly stated he would be required to complete 6 subjects per semester and there were three semesters per year and did not know how many core subjects he has to complete and how many electives to obtain the degree. In this regard the Tribunal raised with him that the course costs $46,800 not the $60,000[2] he claimed, he has to complete 24 subjects[3] to obtain the degree not 18 subjects per year, of which 8 are core subjects and 16 electives[4]. It also raised with him that while one of his claims is that he wishes to study this degree to give him knowledge of the international business area to assist him in building his photocopy business none of the subjects offered have a directly international focus, except for International Human Resources management which is in a different area to the international knowledge he wishes to obtain[5]. In response he indicated that he has adult diagnosed ADHD and this affects his concentration. The Tribunal has considered his response and notes there is no evidence that he suffers this condition and no evidence it affects his memory or ability to recall such information. The Tribunal is of the view if he is genuine and committed to his study for the reasons he claims he would be able to provide more information as to the Bachelor of Business course consistent with independent information. This is particularly so as it is a three year course costing a significant amount. The Tribunal is of the view this adds to the finding he is using the student visa program to maintain migration rather than as a genuine student.

    [2] Bachelor of Business As per the offer submitted by the applicant

    [4] Ibid

1. Further, the applicant’s evidence to the Department and Tribunal as to studying a Bachelor of Business is inconsistent. As the Tribunal raised with him, in contrast to his claim at hearing that he only thought of studying a Bachelor of Business in 2016, in his statement submitted to the Tribunal he indicated that he had always dreamt of completing a university degree. He writes “Since my arrival in Australia I have been dreaming of returning home as a university qualified professional”. However, there was no reference in his statement to the Department in 2015 as to a dream of returning home as a university qualified professional. Rather he indicated in his 2015 statement that he came to study in Australia to improve his English so as to achieve his dream of being a commercial pilot. He indicated in the 2015 statement that on completion of the Diploma of Business he is confident he will have obtained the skills to return home to run his business. The Tribunal also raised with him why when it asked him at the hearing why he came to Australia to study he did not refer to a dream of being a commercial pilot. In response he said he started thinking about actually doing the Bachelor degree in 2016. He also said when he realized he could not work as a pilot he decided to develop his company. The Tribunal does not accept these responses as explaining the inconsistencies. It leads it to find that he is not credible and genuine in his claim and reasons for wishing to study a Bachelor of Business.

2. The concerns raised above lead the Tribunal to not be satisfied that he is not genuine in his reasons for studying in Australia and why he wishes to undertake the Bachelor of Business from 2018. Rather it is of the view he is using the student visa program to maintain residence in Australia. For the reasons outlines above it does not accept his inconsistent evidence arose as a result of his claim to suffer ADHD.

3. As to the applicant’s immigration history, there is no evidence before the Tribunal that he has applied for a permanent visa or other visa to Australia or other countries or has an adverse immigration record.

4. In making the decision the Tribunal has considered all the evidence before it, including that he is currently enrolled, has previously completed the courses claimed in Australia, is attending  his current course, has said he will return home on completion of his studies, has strong family ties in Brazil, he has a business in Brazil, he has returned to Brazil on a number of occasions since arriving in Australia in 2012 and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study or future study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

5. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

6. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

7. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that he intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).

8. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a Student Visa, it must affirm the decision under review.

   DECISION

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

   Gabrielle Cullen
   Member