SZABO (Migration)

[2018] AATA 194

SZABO (Migration) [2018] AATA 194 (6 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Patricia Aparecida Szabo

CASE NUMBER:  1622207

DIBP REFERENCE(S):  BCC2016/3465622

MEMBER:David Barker

DATE:6 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 February 2018 at 3:59pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Studied multiple certificates and diplomas in Australia – Gaps in course enrolments – Currently studying an University degree – Poor academic progress – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994 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 Immigration on 16 December 2016 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 18 October 2016. 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 visa 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 they were not satisfied the applicant intends genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 11 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

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

   Background

6. The applicant is a national of Brazil and is 45 years old. The Department delegate’s decision record, a copy of which was provide with the review application states:

   • The applicant initially arrived in Australia, in August 2008, on a Student (Subclass 570) visa and since that time has held a further five student visas;
   • Since her arrival in Australia in 2008, the applicant has completed a six month English courses and the following courses:

   ·Diploma of Business - 2010

   ·Advanced Diploma of Business - 2012

   ·English Language - 2012

   ·Certificate II in Tourism - 2012

   ·Diploma of Tourism - 2013

   ·Certificate II in Information Digital Media & Technology - 2014

   ·Certificate IV in Information Technology - 2015

   ·Diploma of Website Development - 2016

7. The delegate’s stated that at the time of application the applicant had applied to study a Bachelor of Business course, which would require a prospective grant until September 2019.  In her visa application the applicant provided information addressing the issue of genuine temporary entrant (GTE) criteria, which stated:

   Please accept this letter to support my visa application. I have decided to undertake the following course at Victoria University: Bachelor of Business (Information Systems Management), after a careful research undertook to other Educational Providers. I decided to study at Victoria University after inspecting the premises of the University which is located on level 3-4, 545 Kent Street. I note the University was well maintained.

   I have decided to continue my studies in Australia. It is important for my future that I undertake this course in an English speaking country. Further I have other courses awarded in Australia so l am aware of the excellence of the education here. I would say that I would be more comfortable studying in Australia today than in Brazil as I have more knowledge of the Educational Providers options in Sydney than back home. Also I have been a committed student who paid my fees on time and also I have fulfilled all obligations with the Educational Providers.

   My future plan is while concluding this course, to apply my qualification in Brazil and Australia. This course will be very important for my future, as I will relying on the power to be able to increase my career opportunities. I believe it is going to be important to my professional career as I have studied Business and Information Technology. I am the only child and I am very attached to my mother and my cousins who are like brothers and sisters for me. My mum lives in Sao Paulo, Brazil. And it is my intention after the conclusion of my course to return home. Life overseas has many challenges and I feel the need to be closer to my family.

8. On 8 December 2017, the Tribunal wrote to the applicant inviting her to attend a hearing on 11 January 2018. That invitation, among other matters, requested the applicant provide an explanation of any gaps in her enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

9. On 5 January 2018 and 8 January 2018, the Tribunal received documents from the applicant evidencing her current and past academic study in Australia.  At the hearing, on 11 January 2018, the applicant provided the Tribunal with a written statement which stated:

   In regards to "you are a genuine temporary entrant", I affirm I am a genuine student. I have the following qualifications:

   ·English Certificate issued by The English Language School in Sydney (I have been awarded a "student of the month" by my class teacher).

   ·Diploma and Advanced Diploma of Business issued by Australian Institute of Professional Education

   ·Certificate II and Diploma of Tourism issued by Clarendon Business College.

   ·Certificate IV in Information Technology and Diploma of Website Development.

   I have been a committed student who paid my fees on time and also I have fulfilled all my obligations with the Educational Providers.

   I have decided to undertake the following course at Victoria University, Sydney Campus, studying BACHELOR OF BUSINESS (INFORMATIONS SYSTEMS MANAGEMENT), after a careful research undertook to other Educational Providers, I decided to study at Victoria University after inspecting the premises of the Sydney Campus which is located at 160 Sussex Street, Sydney. I note that the University was well maintained and also I had the opportunity to talk to some students about the course. My objective is to achieve the graduation in Business Information Systems. Please consider that it is important for my studies to undertake the previous certificates so I will be able to learn the details of this particular area of Information Technology.

   I have decided to continue my studies in Australia rather than going back home due to the importance of study these subjects in English and in a University. Mostly of the Information Technology industries relies in English and therefore it is important for my future that I undertake this course in English speaking country. Further I have other courses awarded in Australia so I am aware of the excellence of the education here. I would say that I would be more comfortable studying in Australia today than in Brazil as I have more knowledge of Educational Providers options in Sydney than back home. I would like to conclude my Bachelor of Business (Information Systems Management) course that has already started in Sydney Campus and after that return to Brazil.

   I am currently living in Bondi Junction, I believe that after I arrived in Australia my life has been evolving as it is a challenge to live overseas to seeking my dreams. It is my understanding that Information Technology is a big opportunity for business around the world. I am already qualified in Business, Tourism, and Website Development and I would like to expand my knowledge using the Business Information Systems Management.
   My future plan is while concluding this course, to apply my qualification in Brazil. My course will be concluding on 19th July of 2019. This course will be very important for my future, as I will be relying on the power of Business Information Systems to be able to increase my career opportunities.

   In regards to "an explanation of any gaps in your enrolment/s":
   I spent six months at The English Language School in Sydney studying General English and another six months at the ZBA — Zenith Business Academy studying Diploma of Accounting and was a big mistake because I have nothing in common with this particular career. And for this reason I decided to change and study Diploma and Advanced in Business, which was a really good choice and increase my knowledge and skills.

   After, I choose to study lelts Preparation at Australian Pacific College during a month and then Certificate II in Tourism at Clarendon Business College because I was preparing my application to 485 Skill Visa. But unfortunately, my application on 485 Skill Visa was invalid because I did my application on Friday 6th July of 2012 and my visa was expired on Sunday 8th July 2012. The Immigration received my application form with the documents on 10th July 2012 and then I lost the opportunity and I did not have another chance to apply with my tourism skills because is not anymore at the Skilled Occupation List. And then I decided to improve my knowledge in Tourism (my past career in my home country) studying Diploma of Tourism at Clarendon Business College.

   I felt it was a mistake study Tourism again. I was not happy with my past career and I knew was important move on, challenge myself, change to a different career. So, when I finished my Diploma in Tourism I choose to study Information Technology at City Institute but I did only six months. At this point my previous visa was expired on 15/03/2014 and I've been unable to start my course during the month of December 2013 due to the festivity season and the fact that no courses were available at that particular month and most of the colleges were closed. I could only begin my research and consideration to apply for a further student visa in the middle of January 2014, when I finally decided for Information Technology course at City Institute, the only initiative date available was 07/03/2014. To be honest I did not like to study at City Institute and after six months. I changed to another college because City Institute was not a good choice as I expected and I know I want to learn as a beginner, step by step. As I mention I changed to Wells International College studying Certificate IV in Information Technology and Diploma of Website Development and it was great for my knowledge.

   After my past courses, I started the course at Victoria University on December of 2016 after received Bridging visa. Unfortunately for this reason I could not attend classes in November of 2016 (and lost four week classes).

   Studying Bachelor of Business (Information Systems Management) is not easy, but I really like so at the beginning I failed in two subjects (Economic and Statistic) and as I mention before I lost classes for a month and at the same week I started the classes my visa been refused. Unfortunately, I was really emotional and to be honest was not easy to be concentrate at this time and I know how important this course means. Next term, I did better but I failed in Accounting and the other three subjects I passed. I had to enrol again and do all the subjects I've been failed and two I passed and one I failed for the second time (Economic), and failed in Business Law. So next term will start on March 2018 and I pretend to do the subjects I failed and will choose two more to keep going with this course. At this stage, I felt gratitude and I know it is not easy study in a University, but it is been a great experience. I really had great moments, still improving my skills and knowledge and learning as much as I can. However Victoria University will be ready to help and give me support to the next term with the subject I failed two times. And I will make sure to complete with successful.

   In regards to Evidence of significant ties to my home country for your information, I am the only child and I am very attached to my mother and my six cousins who are like brothers and sisters for me. My mum lives in the city of Sao Paulo, Brazil and all my cousins. It is my intention to return to Brazil at the end of my Bachelor of Business (Information Systems Management) course to be with them. Life overseas has many challenges and I feel the need to be closer to my family members.

   I am in constant contact with my family, I speak with my mother often, and also one of my cousins is my Godmother who I feel that has been always on my side. After the conclusion of my course I intend to return home to provide also a better steady salary to my mother who is a single parent.

   In conclusion, It is been almost ten years I've been living in this beautiful country Australia, and I know I am here for longer than I had planned but I am very close to achieve my goal and then I will return to my home country after that. After this long period I want to go back to Brazil and live with my mum and find a job in Information Technology and this is the reason I am still here — conclude my Bachelor of Business Information Systems. I hope I can get the permission to continue my studies at Victoria University

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 is a genuine applicant for entry and stay in Australia as a student.

11. 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?

12. 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.

13. 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.

14. The Tribunal raised with the applicant that the matter before it is whether she meets the requirements of cl.500.212(a)It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that she is a genuine applicant for entry and stay as student.

15. In relation to her education in Brazil, the applicant stated she finished the equivalent of year 12 and then, in or around 2004 completed a Bachelor of Tourism, before commencing a Master of Business Administration.  She said she only studied for around six months in this degree before she came to Australia. The Tribunal accepts this evidence.

16. The applicant told the Tribunal she came to study in Australia as she wanted to improve her English and also to generally improve her employment opportunities. She said she was a bit lost after leaving a job with a corporate travel company in Brazil, where she had worked for around 10 years. She said her wages in this job amounted to around AUD$800 per month.  She said she no longer wanted to work in the tourism sector and also did not want to undertake any further study in that vocational sector. The Tribunal accepts this evidence.

17. The applicant said she was initially not sure what to study in Australia, but overtime realised she really likes information technology. She said she is now studying a Bachelor of Business (Information System Management), which runs until July 2019. She said a university level qualification will provide her with a useful qualification when she returns to Brazil to look for a good job. She said she did not explore the possibility of studying this sort of course in Brazil, as English language based qualifications will improve her resume and ability to get a good job in Brazil.  The Tribunal accepts the applicant’s evidence that she did not look into the option of studying a Bachelor of Business (Information System Management) style course in her home country due to her preference for an English language based qualification.

18. The applicant acknowledged she has studied Tourism courses since she has been in Australia, despite her evidence elsewhere that she no longer wanted to work or study in this vocational sector.  She said she studied further tourism courses in Australia because she again felt lost and didn’t know what she wanted to do.  The applicant acknowledged she had been in Australia for quite a long time but indicated she has always wanted to improve herself.  The Tribunal accepts the applicant’s evidence she undertook further study in Tourism related courses in Australia, despite having no intention to seek further employment in this vocational sector in her home country. The Tribunal is not persuaded her only motivation for studying this course was because she felt ‘lost’.  The Tribunal considers it also more likely than not that the applicant enrolled in tourism related courses because they were relatively brief inexpensive courses that she would not find overly challenging, given her past studies and extensive work experience in this vocational sector.  The Tribunal considers the applicant’s choices with respect to this course selection is not indicative of a person with a genuine intention to progress academically in a field of study that would enhance her employment prospects in her home country.

19. The applicant said she has now been absent from Brazil for a considerable amount of years and that she does not think it will be easy for her to find a good job if she does not attain a university level academic qualification in information technology.  She said her age and also the lower level courses she has previously undertaken in Australia may make it hard for her to get a job in Brazil, if she does not get a university level qualification.  The Tribunal has placed some weight on this claim, but is also concerned as to the applicant’s previous course choices, as she has acknowledged she undertook study in courses that did not provide her with clear academic progression or improvement in relation to her employment prospects in her home country.

1. In relation to her families’ circumstances in Brazil, the applicant said she is an only child and that her father is deceased. She said her mother works as a dress maker and lives by herself. She said she also has cousins in Brazil and that she no relatives living in Australia.  The applicant said she is not currently in a relationship with anyone in Australia.  The Tribunal accepts this evidence.

2. The Tribunal asked the applicant whether she had departed Australia since her initial arrival and she indicated she had once in 2013 and that she also went on a brief holiday to Indonesia in 2014.  She said she has not returned to her home country since 2013 because of the expense involved in travelling there. Whilst the Tribunal accepts the applicant has family ties in Brazil, which provide her some incentive to return to her home country, the Tribunal has placed some weight on the applicant’s lack of travel to visit her mother and other family members since 2013 and considers this to diminish her claim to have strong ties to her home country.

3. As to her living situation in Australia, the applicant said she lives in rental accommodation in Bondi Junction, NSW, along with two other Brazilian people and the owner of the residential property.  She said she works in the hospitality sector, as a waitress and catering assistant.  She said she works for two agencies and has done so for the past six or seven years.  She said she earns around $750 net per fortnight from this employment. She said her mother also sends her money to assist with the payment of her course fees. The Tribunal notes the applicant is earning a higher monthly income in Australia than she was in the job she held in Brazil prior to coming to Australia.  The Tribunal considers the relative economic circumstances of the applicant, between Australia and her home country, provide her with an incentive to remain working in Australia.

4. The applicant said she plans to return to Brazil after completing her studies in July 2019.  She said a friend in Brazil, who owns an information technology company, encouraged her to study in this vocational sector and her hope is to get employment in this friend’s business.  The Tribunal considers the applicant to have not provided a comprehensive plan for her future employment in Brazil, nor clear evidence she has a job offer from the friend she referred to.

5. The applicant said she has no military commitments in Brazil nor fears return because of civil or political unrest there.  She said there are some current political difficulties in Brazil, but that it is her home country and she knew how to survive there.  The Tribunal accepts this evidence.

6. The Tribunal raised with the applicant that it seemed she had been studying a variety of courses over the last nine years, mostly at a similar academic level and that her answers as to why she was studying her current and some of these past courses seemed vague. The Tribunal noted the applicant had completed a Bachelor degree in Brazil and commenced a Masters of Business Administration in that country prior to coming to Australia.  The Tribunal raised with the applicant that she has been in Australia for over nine years without returning to Brazil more than once in 2013 and that this raised concern she has stronger ties to Australia than Brazil. The Tribunal put to the applicant that her evidence appeared vague and lacking in detail as to her future employment intentions. The Tribunal noted that the evidence indicates that she had studied Tourism courses in Australia, despite saying she had no further wish to work or study in this vocational sector after she left her job in that industry sector prior to coming to Australia. The Tribunal told the applicant that it had some concern as to whether she is a genuine temporary entrant and raised with her that it has concerns she is using the student visa program to maintain residence and asked her if she wished to comment on these concerns.

7. The applicant said the reason she did not start a university level course in Australia before her current course was due to her lack of English skills and due to a lack of money.  She said it was through studying courses at the vocational level that she had improved her English skills and otherwise laid the groundwork for her current higher education sector studies.  When the Tribunal asked the applicant whether she had anything to add she said she did not.  The Tribunal has placed some weight on the applicant’s response to the concerns which were put to her in the hearing.  However, in the particular circumstances of this matter, the weight given to her response does not outweigh the cumulative concerns it has in relation to whether she is essentially using the Student visa program to maintain her residency in Australia, rather than as an opportunity to progress academically in courses that will improve her employment options in her home country.

8. Based on what is evidenced of the applicant’s circumstances overall, including her immigration and study history, her circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, 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 she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

9. 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).

10. 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

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

    David Barker
    Member