Santiago Santos Oliveira (Migration)

[2025] ARTA 842

SANTIAGO SANTOS OLIVEIRA (MIGRATION) [2025] ARTA 842 (10 FEBRUARY 2025)

DECISION AND  

REASONS FOR DECISION

Applicants:Mrs Elizabete Santiago Santos Oliveira
Mr Ernando Santos Oliveira

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2307138

Tribunal:George Hallwood

Place:Adelaide

Date:  10 February 2025

Decision:The Tribunal sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 10 February 2025 at 12:32pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – good academic progress to benefit future career – business commitment in Brazil – church and family ties in home country – complying with visa conditions – decision under review remitted           

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 5 May 2023 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicants applied for the visas on 14 April 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 (Cth) (the Regulations) because they were not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4.    The primary applicant appeared before the Tribunal on 9 January 2025 to give evidence and present arguments. The hearing was not completed on 9 January 2025 due to the ill health of the interpreter and was adjourned to 14 January 2025 when it was completed. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5.    The applicants were assisted in relation to the review. The representative did not attend the hearing on 9 January 2025 but did attend on 14 January 2025.

6.    For the following reasons, the Tribunal sets aside the decisions under review and remits the visa applications for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 meets the requirements of cl 500.212 of the Regulations.

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

8. 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?

1. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, 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.

2. 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.

3. The applicant is a 52-year-old Brazilian national who arrived in Australia on a visitor visa on 15 October 2022 in order to visit her son prior to her applying for a subclass 500 Student visa on 14 April 2023.

The applicant’s circumstances in their home country

1. The applicant expressed her main motivation to study was to learn English, initially enrolling in a General English program. In Brazil she has qualifications as a hairdresser and beautician and owns a hairdresser and beautician business in Brazil. She also wished to learn business and management in a practical sense enrolling in a Diploma of Business in Australia. While she says it is possible for her to learn English and business administration in Brazil, she told the Tribunal that learning business in the Portuguese language would not provide her with the practical level of English she would receive in an English-speaking country such as Australia. In her submission to the Tribunal dated 8 August 2024 the applicant also stated that such courses available to her were short term ‘extracurricular courses’ not offering continuous and structured education or in-depth knowledge.

2. In Brazil the applicant has her eldest son and his wife and a seven-year-old granddaughter as well as her mother and siblings. One of her sisters lives in Australia. The applicant is also heavily involved with her church in Brazil helping to manage the church’s operations. She does online conferencing and prayers with the church which she intends to continue until she returns. While the applicant expressed some comfort in having been in Australia while her youngest son is studying here, the Tribunal is satisfied that her circumstances in Brazil are a significant incentive for her to return to her home country.

3. The applicant provided evidence of property and almost a decade of business ownership (ESSO manicure) in Brazil which she says provides her with a good financial situation in her home country.  She and her husband are currently building an apartment in Brazil. She spoke of being able to build her business in Brazil with the skills obtained in the English course she has now completed and the Diploma of Project Management course she is part way through. While the applicant is in Australia, she says she is not able to grow her business that is currently being looked after by a long-term staff member. Financial information provided indicates the applicant earned a total of $66,000 Brazilian Real (approximately $18,150 Australian dollars) in the 2023 calendar year. She told the Tribunal that while it is hard to estimate she believes that amount may double or treble with the qualifications and knowledge she will take home. The Tribunal is satisfied the applicant’s economic circumstances do not present a significant disincentive for her to return to her home country.

4. In her submission to the Tribunal and reiterated at the hearing the applicant stated that she did not have any concerns about military service commitments or political or civil unrest in her home country.

5. Based on the applicant’s circumstances in her home country the Tribunal is satisfied that she intends to obtain the qualifications she is seeking, which may include an Advanced Diploma of Project Management if she successfully completes the Diploma, and then return to Brazil.

The applicant’s potential circumstances in Australia

1. The applicant’s youngest son is studying in Australia and her husband and one of her sisters also live here. Most of her family and community ties are in Brazil and her youngest son aims to finish his studies and return to Brazil in about two years. The applicant told the Tribunal that her eldest son had completed his studies in Australia and returned to Brazil and was enjoying success in his home country using the knowledge and experience he gained in Australia.

2. The applicant initially enrolled in the General English course and the Diploma of Business in Sydney and then changed enrolments to General English and Diploma of Project Management in Canberra because that was where her son was studying. The Canberra courses finish within a month of the times of the Sydney courses (and in both cases earlier than the original courses). There is no evidence before the Tribunal that the courses are being used to circumvent the intentions of the migration programme or to maintain ongoing residence and the applicant’s relationship has not changed.

3. In her submission of 8 August 2024, the applicant sets out reasons for choosing the course of study, the training provider, and the city in which she sought to study in. While influenced by where her son was studying, the Tribunal is satisfied from the submission and the applicant’s oral evidence that she has a reasonable knowledge of Australia, the courses of study suited to her, and has matched them to her level of knowledge. She has also relied on an education advisor to assist her with her choices. By choosing to study in Canberra where her son studies, accommodation and living costs are able to be shared and are therefore less than if she was not sharing a household with her son.

Value of the course to the applicant’s future

1. Evidence provided by the applicant including her: Certificate of Achievement - Intermediate level General English from Australia Institute of Technology and Education; and, Diploma of Project Management Record of Results showing successful completion of five units of competency demonstrate that she is seeking to undertake a course that is consistent with their current level of education. The applicant has her own business in Brazil which she expects to expand based on her project management and improved English skills. She will be using imported products that she will be able to administer safely due to her improved English and understanding of product instructions which will open up a broader and wealthier clientele including tourists.

2. The courses she is studying are directly relevant to the applicant’s proposed future employment through expanding her business and its range of products. The applicant, as well as planning business growth in Brazil, has explored opportunities of working or building her business in other countries such as the USA and UK where wages and consultancy fees for people with her skills and experience once qualified can be as much as $60,000 to $100,000 per year.

3. While there is limited corroborating evidence available for the potential level of expansion the applicant describes, the Tribunal is satisfied that the project management and English qualifications the applicant seeks will improve her employment and economic prospects in Brazil.

The applicant's immigration history

1. Apart from her subclass 600 Tourist visa granted on 24 September 2022, the applicant has not applied for or been granted any other substantive visa’s. She was granted a bridging visa on 14 April 2023 while the current Student visa application is being reviewed.

2. The applicant told the Tribunal that she has not applied for a visa to any other countries.

3. Having applied for a Student visa in April 2023 when her Tourist visa ceased, and completed her General English course and progressed with her Diploma of Project Management there is nothing in the amount of time the applicant has spent in Australia to suggest her Student visa is being used primarily for maintaining ongoing residence.

Conclusion in relation to the applicant’s intent to genuinely stay in Australia temporarily

1. 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?

1. 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.

2. 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). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.

3. There is nothing before the Tribunal that suggests the applicant has failed to comply with visa conditions. The applicant stated at the hearing that she had not failed to comply in the past and she intended to comply with visa conditions in the future. The applicant also provided evidence where that was available such as a copy of her health insurance certificate.

4. 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).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).

2. There are no other relevant matters before the Tribunal for consideration.

Conclusion on cl 500.212

1. 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.

2. 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

1. The Tribunal sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl 500.212 of Schedule 2 to the Regulations.

Dates of hearing(s):  9 and 14 January 2025 

Representative for the Applicant:           Mr Anil Uprety (MARN: 1908903)

Attachment – Direction No 108

DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)

I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security give this Direction under section 499 of the Migration Act 1958 (the Act).

Dated:

Clare O’Neil

Minister for Home Affairs and Minister for Cyber Security

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

Part 1 - Preliminary

Name of Direction

This Direction is Direction No. 108 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

It may be cited as Direction No. 108.

Commencement

This Direction commences on 23 March 2024.

Revocation

Direction No. 69, given under section 499 of the Act, is revoked.

Interpretation

Act means the Migration Act 1958.

Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Regulations mean the Migration Regulations 1994.

Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Spouse has the same meaning as the definition of the term in section 5F of the Act.

Student visa means a Subclass 500 (Student) visa

Student Guardian visa means a Subclass 590 (Student Guardian) visa.

Application

This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

Preamble

The Australian Government operates a student visa program that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa program must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

a) the applicant’s circumstances; and

b)the applicant’s immigration history; and

c)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

d)any other relevant matter

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a) to d), to determine whether the applicant genuinely intends to stay in Australia temporarily.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily.

Part 2 – Directions

Assessing the genuine temporary entrant criterion

1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a)considering the applicant against all factors specified in this Direction; and

   b)considering any other relevant information provided by the applicant (or information otherwise available to the decision maker)

3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

4. Circumstances where further scrutiny may be appropriate include but are not limited to:

   a)information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b)the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c)the applicant intends to study in a field unrelated to their previous studies or employment; and

   d)apparent inconsistencies in information provided by the applicant in their Student visa application or Student Guardian visa application.

5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country

1. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a)whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b)the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c)economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d)military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e)political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

2. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia

1. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a)The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b)evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c)whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   d)whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e)the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

1. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a)whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b)relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c)remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

The applicant's immigration history

1. An applicant’s immigration history refers both to their visa and travel history.

2. When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a)Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   iii.b. Previous travels to Australia or other countries, including:

   iv.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   v.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   vi.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   vii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.

If the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant

1. If the primary or secondary applicant for a Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

Any other relevant matters

1. Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.