Bartaula (Migration)

[2019] AATA 2595

Bartaula (Migration) [2019] AATA 2595 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anjal Bartaula

CASE NUMBER:  1728252

HOME AFFAIRS REFERENCE(S):           BCC2017/3141156

MEMBER:Damian Creedon

DATE:17 May 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 17 May 2019 at 2:58pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – credible witness – regression in level of study – changes in study and career pathway – persuasive career plan – genuine interest in the hospitality industry – strong family ties in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 and Border Protection on 1 November 2017 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 30 August 2017. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

CONSIDERATION OF CLAIMS AND EVIDENCE

4.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 satisfies cl.500.212(a).

5.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?

6.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, 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.

7.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.

Overview of evidence

8.The applicant is a 22-year-old Nepalese national who first arrived in Australia on 7 July 2014 as the holder of a Higher Education Sector Student (Class TU subclass 573) visa.

9.The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

10.The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

11.The applicant’s Provider Registration and International Student Management System (PRISMS) record, as clarified by the applicant (see further below), shows that, at the date of his current visa application (30 August 2017), he had successfully completed the following courses:

Course Name	Date Commenced	Date Completed
Certificate III in Commercial Cookery	25/07/2016	16/07/2017

12.PRISMS also records that since his current visa application the applicant has successfully completed a Certificate IV in Commercial Cookery (24/07/2017 – 28/01/2018) and a  Diploma of Hospitality Management (05/02/2018 – 29/07/2018).  He is due to commence a 12-month Advanced Diploma of Hospitality Management on 6 July 2019 in Adelaide.

13.PRISMS further records that the applicant was enrolled in, and subsequently cancelled, the following two courses:

Course Name	Commencement	Cancellation	Reason
Diploma of Commerce	09/07/2014	26/06/2015	CoE cancelled by the provider due to cessation of studies
Bachelor of Commerce	13/07/2015	30/06/2017	Non-commencement of studies

14.The applicant appeared before the Tribunal on 17 May 2019 to give evidence and present arguments.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

15.At the hearing, the Tribunal discussed with the applicant his written submissions in support of his application.  In summary the applicant provided the following information, as clarified at the hearing:

• His parents run a successful cereal business in Nepal.  They held an aspiration that he should complete a bachelor level course in commerce and accounting as they wished to provide him with “the best education they could afford”.  Following their wishes he enrolled in a study pathway comprising a diploma of commerce and bachelor of commerce.  His interests, however, lay towards the hospitality and tourism industry.  The reason for this interest was because his home country, Nepal, is a very popular international tourist destination, offering international visitors a variety of activities and experiences in the adventure, eco and cultural travel sectors.
• He expressed his views to his parents and “was able to convince them” as to his preferred career path and this prompted his decision to change his course direction to study in the hospitality industry.
• His career goal is to establish a hospitality business in Nepal based upon its popularity as an international tourism destination.  He explained that tourism is the largest industry in Nepal and its largest source of foreign exchange and revenue with further growth expected. 
• He does not wish to reside in Australia beyond the duration of his studies and has not established any significant relationships in Australia in respect of “business ownership [or] membership of any community organisation[s]”.
• His family is “financially self-sufficient” and his parents intend to support him during his studies in Australia “both financially and emotionally”.  He is close to his family in Nepal; he also has a sister who is married and living in Perth.
• He has chosen to complete his advanced diploma of hospitality management in Adelaide because of a lower cost of living than other Australian cities and to gain experience in the hospitality industries in a variety of Australian cities (having commenced his studies in Sydney before moving to Perth).
• Upon completion of his studies he is eager to return to Nepal to work as there is “a huge demand for well-qualified professionals” in the hospitality industry.
• His decision to study in Australia particularly was guided by the reputation of Australian courses in “the Asian market” and came with the added advantages of improving his English language skills and learning western cultural norms so as to successfully deal with and accommodate western tourists when he returns to Nepal.  He states that the Australian education system has higher standards than that in Nepal and he was able to obtain “first-hand” information from a friend who was already studying in Australia.
• He states that he has not travelled out of Australia because his sister resides in Perth and his parents have visited twice: in 2016 for three months and again in 2018.  He states that his grandmother visited in 2017 and his parents will be visiting again in 2019.
• He states that the “governance system in Nepal is very stable and there is no mandatory military service commitments”.

16.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Analysis and findings

17.The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving his evidence he did not convey an impression of concoction or recent invention. 

18.The Tribunal initially shared the delegates concerns, as stated in her decision record, regarding the applicant’s departure from higher education pathway to a pathway in the Vocational Education and Training (VET) sector: initially a certificate IV in accounting (which he did not finish) and then a certificate III in commercial cookery.  At the hearing the applicant explained that, despite his attempt to undertake his initial diploma-level studies in commerce, he was unable to successfully complete them as they were too hard for him.  The applicant stated that, in response, he initially “downgraded” his diploma of commerce to a certificate IV in accounting but that, correcting his PRISMS record, he was unable to successfully complete that course either.  He explained to the Tribunal that it was at this point that he spoke to his parents regarding his interest in pursuing an alternative career in the hospitality industry.  He stated that he was able to convince his parents to allow him to change career directions.  Consequently the applicant decided to take up hospitality as a new career pathway. The Tribunal found the applicant’s evidence persuasive and accepts that his study and career plans have changed during his time in Australia.

19.The Tribunal also found the applicant’s evidence in relation to his future career plans persuasive. The applicant’s evidence at the hearing was that he plans to continue his studies in Australia to enhance his career prospects in Nepal.  He explained that diploma and advanced diploma level qualifications earned in Australia carry a prestige in Nepal and would enable him to obtain employment in reputable businesses upon his return.  He stated that his goal is to open his own restaurant and hospitality business in there.  When pressed by the Tribunal the applicant was able to provide a good summary of the state of the hospitality industry in Nepal, including the importance of international tourism to the country, potential growth areas and potential target markets.  He was also able to provide evidence of the type of business he aims to open in reasonable detail. 

20.As to the applicant’s present circumstances in Australia, the applicant displayed an awareness of his visa conditions and stated that, within those conditions, he is presently working in a café in Adelaide (where he presently resides and wishes to study).  He described his job in the business and how his job enables him to gain valuable experience for his proposed future career.  His evidence did not raise any concerns in Tribunal's mind that the applicant is building a career in Australia. 

21.The Tribunal also accepts the applicant’s evidence as to his close connection to his family in Nepal, as evidenced by his family’s frequent visits, and finds that these factors provide a strong incentive for him to return at the completion of his studies.

22.There is no evidence before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia. There is also no evidence that the applicant has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

23.The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding the applicant’s circumstances and genuineness in the presentation of his evidence.  The applicant presented as a confident and eager young man who, overall, exhibited a keen knowledge of, and an enthusiasm for, his chosen study and career pathway.

24.The Tribunal has assessed all of the evidence before it, including that he is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has strong family ties in Nepal and all the other matters he has raised.

25.On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

26.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.

27.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

28.The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Damian Creedon
Member

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.