Vieira da Silva (Migration)

[2021] AATA 2326

Vieira da Silva (Migration) [2021] AATA 2326 (6 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luis Fernando Vieira da Silva

CASE NUMBER:  2003041

HOME AFFAIRS REFERENCE(S):          BCC20194967982

MEMBER:Stephen Witts

DATE:6 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 06 May 2021 at 4:10pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– poor academic record – not a genuine temporary entrant –personal tie with Australia–use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.312

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 2020 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 3 October 2019. 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.500.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa.

4. The applicant appeared before the Tribunal on 6 May 2021 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

6. The applicant was assisted in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision and review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 as a member of the family unit of a person who holds a student visa.

   cl.500.312

   The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, 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;

   (iii)if the applicant is a minor- 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

   any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

9. In considering whether the applicant satisfies cl.500.312, the Tribunal must have regard to Direction 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; the applicant’s immigration history, including previous applications for an Australian visa or for visas of 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.

10. This 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 a genuine temporary entrant criterion.

11. According to the delegate’s decision record dated 31 January 2020 provided to the Tribunal by the applicant, the delegate made a finding that the applicant was not a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa. According to the delegate it made an assessment under Ministerial Direction number 69 and made a finding that the applicant was not a genuine temporary entrant.

12. According to the delegate the applicant applied to be added as a subsequent entry on the associated student visa holder’s visa which is due to expire on 15 March 2022. According to the delegate it made an assessment of the applicant’s status as a genuine temporary entrant as stated above noting that the applicant has had numerous enrolments cancelled, that he arrived in Australia in 2017 on a tourist visa and had not departed since, whilst holding his own student visa most of his enrolments were cancelled due to non-commencement of studies, cessation of studies or unsatisfactory attendance.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. In particular the Tribunal has considered a submission from the applicant’s representative dated 4 May 2021 where it was stated that the applicant arrived on a tourist visa in October 2017 and applied for a student visa in January 2018. It was stated that he started a general English course but did not complete his first enrolment. It was stated that he then started another English course and also did not complete that one. It was stated that the applicant started a certificate IV level enrolment in a project management course which he did not complete and a similar level course in business which he also did not complete. It was stated that he then completed an English course in April 2019. It was stated that he then applied for a subsequent entrant visa which was refused. It was noted that the applicant’s partner, Roberta Veira Rodriguez, has a valid student visa until March 2022.

14. The Tribunal notes that in the submission it was acknowledged that the applicant has a poor academic record. It was also acknowledged that the applicant didn’t demonstrate significant ties to his home country, didn’t provide a personal career and study plan, and has not departed Australia since October 2017.

15. It was further stated that the applicant did not enter into a relationship in order to be added to his wife student visa so he could remain in Australia and that he is in a genuine relationship. It was further stated the applicant does not have significant ties to his home country but that his father has visited him here from Brazil.

16. The Tribunal also notes that the applicant provided a statement to the Tribunal dated 3 May 2021 where he stated that he first came here as a tourist and loved Australia. He decided he wanted to remain here as a student but that he has had significant learning difficulties. He stated that whilst here he heard that his grandfather was ill. He stated that he entered into a relationship with his now wife and married in August 2019 and that her father died in September 2020. He stated that he wanted to visit Brazil numerous times but never went. He stated that his goal is to return to Brazil but wants to learn English here.

17. The Tribunal also notes that the applicant’s associated student visa holder and wife also provided a statement dated 28 April 2021 from Brazil stating that her father had died and that she has returned to her home country for a period of time. She stated that because of the pandemic she has had to remain in Brazil.

18. At hearing the Tribunal had a detailed discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.

19. At the hearing the Tribunal had a discussion with the applicant regarding his stay here. The applicant acknowledged that his academic record had been poor here but that he still wanted to study English here and at the moment he is having private lessons. The Tribunal had a discussion with the applicant regarding this matter and to what reasons he would like to put in regard to the value of any proposed future enrolment in English if that is what he decided to do as the applicant had said that he had been considering such an enrolment. The applicant stated that he thought studying English here would assist him in any future endeavour.

20. As above the Tribunal has considered the value of the applicant’s proposed English enrolments to his future. The Tribunal finds that the applicant is seeking to undertake courses that are not consistent with his current level of education noting that he has now had in fact several attempts to study English here and that that course will not necessarily assist the applicant to obtain employment or improve employment prospects in his home country. The Tribunal acknowledges that decision-makers should allow for reasonable changes to career study pathways however after careful consideration the Tribunal finds that the relevance of the course to the applicant’s past or proposed future employment either in his home country or a third country is not clear and the remuneration the applicant could expect to receive in his home country or a third country compared with Australia using the qualifications to be gained from this proposed course of study would not provide value to the applicant’s future that he has stated. The Tribunal finds that this lends weight to the contention that the applicant is not a genuine temporary entrant and is using the student visa program to circumvent the migration program.

21. The Tribunal had a discussion with the applicant regarding his decision to stay here and study English privately and why, bearing in mind his inability to be able to study here and in particular to better study English did he consider going back to his home country to do so as courses of that type would clearly be available. The applicant stated that he had considered returning home and studying English and then working in his father’s business but has now decided to stay here in Australia with his spouse and consider perhaps enrolling in an English course here. He reiterated that he has been attempting to learn privately online.

22. As above the Tribunal has considered the applicant’s circumstances in his home country in the context of his study and finds that the applicant has not given reasonable reasons for not undertaking this study in his home country or region as similar courses are already available there. The Tribunal acknowledges that decision-makers should allow for any reasonable motives to be established by the applicant however in this case the Tribunal finds that the applicant has not established such reasonable motives. The Tribunal does not accept the applicant’s evidence as credible in this matter and finds that this also lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program and is not a genuine temporary entrant.

23. The Tribunal had a discussion with the applicant regarding whether there were any political or military commitment issues that would stop in returning to his home country. The applicant stated that there were no such issues that would stop him returning home.

24. The Tribunal had a discussion with the applicant regarding his circumstances in Australia and the applicant stated that he does have an older brother here in Australia who was learning English and is on a student visa, that he is active in the local Brazilian community and does attend Brazilian mass here.

25. As above the Tribunal has considered the applicant’s evidence in regard to his potential circumstances in Australia noting that the applicant is here with his spouse and living in a family style situation. The Tribunal has considered this matter carefully and finds that the applicant’s ties with Australia would present as a strong incentive for the applicant to remain in Australia and this specifically includes family ties. The Tribunal finds that this lends weight to the contention that the applicant is not a genuine temporary entrant.

26. In regard to circumstances in his home country the applicant has stated that he has a father who has visited him here in Australia and he did not indicate that he was having any particular issues or problems maintaining his family connections from here in Australia. The applicant also noted that he has not returned home since 2017.

27. As above the Tribunal has considered the applicant’s evidence in regard to his circumstances in his home country carefully and finds that the extent of the applicant’s personal ties to his home country do not serve as a significant incentive for the applicant to return to his home country and that this also lends weight to the contention that the applicant is seeking to use the student visa program to maintain residence in Australia and that he is not a genuine temporary entrant.

28. In regard to the economic circumstances of the applicant it is noted by the Tribunal that the applicant has stated that he is now working as a removalist earning up to AU$900 per week and that his wife has been working as a cleaner and earning up to AU$800 per week.

29. As above the Tribunal has considered the economic circumstances of the applicant and finds that in this case the economic circumstances of the applicant here in Australia would present as a significant incentive for the applicant not to return to his home country. These circumstances include consideration of the applicant’s circumstances relative to his home country and to Australia. The Tribunal finds that this lends weight to the contention that the applicant lacks motivation to return to his home country and that he is not a genuine temporary entrant.

30. The Tribunal had a discussion with the applicant regarding his immigration history noting that he has now been here for some years and that he was attempting to stay here for another significant period of time on associated student visas. The Tribunal also noted that the applicant originally came here on a short-term tourist visa. The Tribunal did not find the applicant’s evidence in this regard as to his intentions regarding his visa application credible.

31. As above the Tribunal has considered the applicant’s visa and immigration history and finds that the applicant’s use of Australia’s visa and immigration program is an indication that the applicant is not a genuine temporary entrant.

    Conclusion on cl.500.312

32. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a member of a family unit of a person who holds a student visa as required by cl.500.312.

33. 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

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

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    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 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    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’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

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

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme 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 programme 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 of Direction No. 69 - 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.

    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

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

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.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

    9.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.

    10.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

    11.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;

    dwhether 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

    12.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

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

    14.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.

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

    i.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;

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

    iii.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

    iv.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

    15.If the primary or secondary applicant for a Subclass 500 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

    16.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.