BERMA (Migration)

[2021] AATA 2490

BERMA (Migration) [2021] AATA 2490 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss SHEETAL BERMA

CASE NUMBER:  1921793

HOME AFFAIRS REFERENCE(S):          BCC2019/2682421

MEMBER:Brian Camilleri

DATE:17 June 2021

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations.

Statement made on 17 June 2021 at 4:37pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – circumstances in home country – circumstances in Australia – immigration history – academic record and progress – value of course to future prospects – 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 Home Affairs on 31 July 2019 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 23 May 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.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) and the applicant did not comply with the genuine temporary entrant criterion.

4. The applicant appeared before the Tribunal on 8 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was assisted in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted 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 complies with the genuine temporary entrant criterion.

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

1. 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.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.

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.

Hearing – 8 February 2021

1. The hearing was attended via telephone by the applicant. It was explained to the applicant that the law which is applied by the Tribunal is the same law, which is applied by the Department of Home Affairs (the Department), but the Tribunal and the Department are separate and distinct agencies.

2. The applicant was informed that the Tribunal Member had access to:

   • files of both the Department and the Tribunal relevant to her visa application and visa review;
   • the delegate’s decision;
   • a copy of the travel and movement record of the applicant showing her movements to and from Australia;
   • the PRISMS (Provider Registration International Student Management System) record relevant to the applicant, listing all courses in which she had enrolled, the duration of the courses and whether the courses were cancelled, finished, completed, studying or approved for future study.

   a.   the information in the response to the Tribunal’s request for student visa information (Form M17) completed by the applicant.

3. The applicant was also informed that the Tribunal’s review would involve a consideration of the applicant’s circumstances in her home country, the applicant’s circumstances in Australia, the applicant’s travel and movement record, the applicants’ academic record and the value of the course to the applicant’s future prospects and any other relevant matter.

4. Furthermore, the applicant was informed that the Tribunal was required to consider the facts and circumstances as they stood at the date of the decision and not the facts and circumstances as they stood as at the date of the delegate’s decision (made in 2019).

5. The Tribunal also informed the applicant that in conformity with the provisions of the Migration Act 1958 (Cth) (s359A) the Tribunal would put to her any information relied upon which in terms involved material comprising a rejection, denial or undermining of her case and she should use the hearing as an opportunity to correct, explain and address any such material or information and concerns.

   Applicant’s Circumstances in Home Country

6. The applicant is thirty-seven (37) years old. She is not married. Her mother and brother live in her home country of Nepal. Her father is deceased. Prior to arriving in Australia, the applicant studied two courses: (a) Intermediate in Nursing; (b) Bachelor of Nursing (graduating in 2010). She worked as a health program supervisor (earning $3,000 per annum), an academic supervisor (earning $6,700 per annum), and as a matron (earning $5,200 per annum). She listed as assets a house and land valued at $160,000. She provided the Tribunal with a signed letter of consent from her mother who stated she would be prepared to transfer the property in equal share to her two children. The applicant also provided a valuation of the property owned by her mother.

   Applicant’s Circumstances in Australia

7. The applicant first arrived in Australia on 26 February 2015 on a Student (TU 573) Visa valid until 15 September 2016. Since then, she has been granted the following visas:

   ·   On 29 September 20016 she was granted a second Student (Subclass 500) Visa valid until 15 March 2017.

   ·   On 30 March 2017 she was granted a third Student (Subclass 500) Visa valid until 25 May 2017.

   ·   On 25 May 2017 she was granted a Temporary Graduate (VC-485) Visa valid until 25 May 2019.

   ·   On 23 May 2019 (two days before her temporary graduate visa was due to expire) she applied for a fourth Student (Subclass) 500 Visa. At the time she was enrolled in a Diploma of Leadership and Management course. Her application was rejected on 31 July 2019.

8. The applicant has worked in four employment positions in Australia: twice as a personal care assistant, and then two positions as a registered nurse. In her latest position she earned $60,000 per annum. She listed annual living expenses of $35,880. At hearing she stated that she lives in share accommodation.

   Applicant’s Immigration History

9. Since her arrival in Australia on 26/02/2015 the applicant has made the following trips to and from Australia:

Trip	Departure from Australia	Arrival in Australia
Onshore	N/A
1	14/12/2017	08/01/2018
First Arrival	26/02/2015

1. In almost six years, the applicant has left Australia only once for a period of three weeks. Although COVID travel restrictions go some way to explaining her lack of recent travel, the applicant’s duration in the country with only limited travel raises concerns for the Tribunal as to whether the applicant is genuinely here on a temporary basis.

2. In written submissions, the applicant contended that she has not returned home since she wanted to concentrate on her studies. She also contended that she has not applied for permanent residence, which shows she does not intend to remain in Australia to pursue employment opportunities. She stated that she definitely intends to return home after her studies in Australia.

   Applicant’s Academic Record and Progress

3. At the time of making its decision the Tribunal had available it the applicants academic record as set out in the Provider Registration International Student Management System (PRISMS) (as at (19.1.2021). It showed the courses undertaken by the applicant. 

Course	Status
Master of Nursing (Start Date: 17/02/2015 - End Date: 01/09/2015)	Cancelled
Master of Nursing (Mental Health), (27/07/2015 - 31/12/2016)	Finished
Master of Business Management, (Start Date: 03/03/2017 - End Date: 24/05/2017)	Cancelled
Diploma of Leadership and Management, (Start Date: 10/06/2019 - End Date: 06/12/2020)	Cancelled
Diploma of Leadership and Management, (25/05/2020 - Proposed Course End Date: 21/11/2021)	Studying

1. The applicant first arrived in Australia on 26 February 2015. Five months later, on 27 July 2015, she commenced her first course (Master of Nursing), which she completed on 31 December 2016. For the next five months, she remained on a student visa until 25 May 2017 but did not successfully complete any courses.

2. At hearing, the Tribunal expressed concerns that the applicant has left significant gaps in her study history and has cancelled two courses. She had been granted a temporary graduate visa whose conditions allow her to work and/or study, but she chose not to study. For her latest Student Visa application, the applicant reverted to studying at the Diploma level. This may appear to be a step back academically from the master’s level she previously studied. That said, her leadership and management course will benefit the role she seeks as a “nurse in charge”. The applicant was enrolled in this course at the date of her latest student visa application (23 May 2019) but then cancelled the course. She then re-enrolled one year later and commenced studying on 25 May 2020. At hearing, the applicant was questioned as to why she cancelled her course. She stated that she had become distressed when her student visa application was rejected, and this caused her to discontinue her course. It was only when she consulted a migration agent that she re-enrolled in this same course, approximately a year later. She stated that she pays $1500 quarterly for the course and has so far paid $6,000 toward tuition on her current course. The Tribunal finds that the applicant has made academic progress.

   Value of Course to Applicant’s Future Prospects

3. In her written statement of purpose to the Tribunal, the applicant stated she was motivated to become a nurse since remote areas of Nepal lacked skilled professionals in the health services area. She lost her maternal uncle from a preventable disease. She stated that her latest course (Leadership and Management) would enable her to take on higher levels of responsibility within a health services provider. She is particularly motivated to help women and children in poorer areas of her country. The applicant furthermore stated her intentions of “starting a not-for-profit organisation that will help needy people who require medical treatment as well as social/community consultation.

4. The Tribunal accepts the applicant’s justification for wanting to study a leadership and management course. Her latest role as a “nurse in charge” and the skills offered by this course would help her to advance in her career. She explained that in her future roles she would need to lead a team of care staff members and efficiently manage difference activities, which would require spontaneity, accuracy and accountability. The applicant demonstrated she had researched the possibility of doing similar courses in her home country but found that none are available.

5. The Tribunal notes that the applicant did not choose to pursue this course during the period of her two-year temporary graduate visa. She was not obliged to study under the visa conditions. Neither did she study this course during the period she proposed in her student visa application. If she had done as she proposed in her application, and taken advantage of the lengthy time during which she waited for her appeal to come be listed for hearing, she would have finished the course by now (according to the PRISMS, it was originally due for completion on 6 December 2020). Instead she did not commence her studies until a year after applying for the visa, thereby extending her proposed stay by a year. The Tribunal would have looked favourably on any decision by the applicant to continue studying following her student visa rejection and her appeal to the Tribunal, but accepts her explanation that she felt dejected.

6. In written submissions, the applicant stated she expected to earn AUD 60,000 to AUD 80,000 per annum on return to Nepal. Those salaries are not available in her home country for registered nurses. The applicant previously worked as a qualified nurse in the healthcare industry in Nepal earning a maximum of $6,700 per annum. At hearing, the applicant clarified that she made a mistake and intended the currency to be listed in Nepalese Rupees. Presumably she intended to quote her monthly (rather than annual) salary (since 80,000 NPR is approximately AUD 890 at the current exchange rate). The Tribunal accepts this was an error and the applicant’s agent has also clarified in written submissions that her expected salary in Nepal would increase significantly as a result of completing her current course in Australia.

7. The Tribunal is required to make its decision at the time the matter is under review based on the facts at the date of its decision and not as they existed at the date of the delegate’s decision. In this case the decision under review (at the time it was made by the delegate) was reasonable and appropriate. But circumstances have changed since that time in that the applicant has provided detailed explanations of her reasons for studying her chosen course in Australia and how her current course would be of value to her future career and other endeavours in her home country. The applicant has provided evidence she is currently studying her course, which is due for completion on 21 November 2021. The applicant has demonstrated by her performance the validity of her claims and there is no reason to doubt that on completion of her course she proposes to return to her home country.

8. 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).

   Other Relevant Matters

9. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant's genuine intention to temporarily stay in Australia and finds that there are no other relevant matters for consideration.

10. 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.

11. 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

12. 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. of Schedule 2 to the Regulations.

Brian Camilleri
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

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 Subclass 500 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;

   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

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.

   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

1. 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

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.