Bundartsag (Migration)

[2021] AATA 871

Bundartsag (Migration) [2021] AATA 871 (16 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Narantsetseg Bundartsag
Mr Badral Sosorbaram

CASE NUMBER:  1914399

HOME AFFAIRS REFERENCE(S):          BCC2019/2344114

MEMBER:Elizabeth Tueno

DATE:16 March 2021

PLACE OF DECISION:  Melbourne

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 16 March 2021 at 5:13pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – reason for studying in Australia – ties to home country – family members in Mongolia – economic circumstances – potential ties to Australia – husband and son’s presence in Australia – value of course – level lower than current level of education – changed career paths – early childhood education – applicant’s immigration history – 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 27 May 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 May 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant met the genuine temporary entrant requirement for the grant of a student visa.

4. The applicants appeared before the Tribunal on 23 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.  The applicants were assisted in relation to the review by their registered migration agent.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 intends genuinely to stay in Australia temporarily.

8. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

9. 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.

10. 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.

11. The Tribunal has had regard to the applicant’s evidence and the migration agent’s submissions given at the hearing, the documents submitted to the Tribunal by the applicants as well as the contents of the Department’s file.

12. The applicant is a 44 year old woman from Mongolia.  She came to Australia on 4 June 2018 with her husband, both on visitor visas.  Having applied for this student visa, she provided evidence of enrolment in the following courses:

    ·     General English – commenced in May 2019 and completed in February 2020;

    ·     Certificate III in Early Childhood Education and Care – commenced on 20 April 2020 and due to be completed on 11 December 2020 (after the hearing was conducted); and

    ·     Diploma of Early Childhood Education and Care – to commence on 25 January 2021 and end on 10 December 2021. (“the proposed courses”)

13. The applicant stated in her completed s.359(2) questionnaire response that she was not undertaking the proposed courses in her home country of Mongolia primarily because of the lower quality of education provided there compared to the education system in Australia.  She said that the Mongolian system “lacks creativity and the approach is more theoretical than practical”.  She then went into more detail about the system, noting that the Mongolian education system was based on the “Soviet  communist system until 1990” and contained a great deal of “ideological indoctrination”.  She noted that although there has been efforts to modernise Mongolia’s education system, it is still somewhat lacking.  She referred to articles which discussed the Mongolian education system, the differences between it and the Australian system, and also the lack of any Mongolian university entering into even the top 1000 universities around the world.  The Tribunal does take into account that the applicant completed a Bachelor of Food Science degree at the Mongolian Technical University in 1999 and that she has most recently been a director of her own company.  However, it does also take into account the disparities between the education systems in Australia and Mongolia.  It accepts that Australian has a far more enviable education system than Mongolia and it therefore accepts the applicant has sound reasons for not undertaking the proposed courses in her home country. 

14. In relation to her ties to her home country, the Tribunal notes that her husband and only child are with her in Australia -  her husband as a dependant on her application for student visa and her son on his own separate student visa.  However, she does have other family members still living in Mongolia including her mother, sister and brother.  She has another sister living in the United States of America, and another brother who resides in France.  She said that she maintains contact with her family in her home country online and by telephone on an almost daily basis.  Further to this contact, the Tribunal takes into account that the applicant has returned to Mongolia twice whilst holding a valid visitor visa.  The first occasion was in July 2018 when she returned for 3 months and the second occasion was in December 2018 when she returned for 2 months.  Since then, the applicant has started her courses and has been studying since then.  The Tribunal accepts that the applicant does have personal ties to her home country because of her family members living there and that she has demonstrated that they are an incentive for her to return there, given she has spent around 5 months during the last three years in Australia.

15. In relation to her economic circumstances, the applicant has not been working in Australia.  She provided evidence to the Tribunal (which was not provided to the Department) of land ownership in her own name in Mongolia and also a term deposit in Mongolia.  She further provided evidence of property ownership in other family member’s names.  Further to this property ownership, the applicant was a company director of her own business for around a year prior to coming to Australia.  Her husband also ran a business producing furniture, which he will resume when he returns to Mongolia.  The Tribunal is satisfied that the applicant and her husband were in a reasonably sound economic position prior to coming to Australia and that their economic circumstances would not be a significant incentive to remain in Australia rather than return to Mongolia after the completion of her studies here.

16. There was no evidence that the applicant is using the student visa to avoid military service commitments or because of any political or civil unrest in Mongolia.

17. The Tribunal has also taken into consideration the applicant’s potential ties to Australia.  She has come here accompanied by her husband.  However, she also has her son living in Australia, who has his own separate student visa.  He is 20 years old and lives with his parents here.  He is studying economics at Strathfield College, having commence his studies towards the end of 2019.  He is expected to complete his studies in 2022.  The applicant told the Tribunal that she initially came by herself to visit her son.  She visited twice without her husband, but he came with her on her third visit here.  She said that she decided to study in Australia because she wants a “world class education” and because she enjoys the climate here.  When asked whether she wanted to stay in Australia because she wanted to look after her son, she said that he came when he was 18 years old, but he is now aged 20 so she is not so concerned about him.

18. She also told the Tribunal that she has not worked in Australia, nor has her husband.  If they are granted a student visa and permitted to work, he will probably look for work.  If not, he will simply stay at home while she completes her studies. 

19. The Tribunal notes that despite the delegate’s refusal, the applicant has continued her studies.  At the time of the hearing, she was on track to complete the Certificate III course in December 2020 and would be shortly commencing the Diploma course. 

20. The Tribunal considers that having her husband and son with her in Australia does represent a tie to Australia and with particular reference to her son, would be an incentive for her to want to remain here so long as he remains in Australia.  The Tribunal has some concerns that the applicant may be motivated to study in Australia as that will allow her family to stay together as her son completes his own studies.  However, her son is here in Australia temporarily and is on a student visa.  No evidence was provided about his future plans beyond the completion of his studies in 2022. 

21. Tribunal considers that the evidence of the applicant’s studies in Australia since the delegate’s refusal suggests that the applicant is a genuine student.  It considers that her intention to stay in Australia is linked to that of her son, despite her claim that she is not concerned about him now that he is 20.  This is not reflected in the state of her evidence.  She has visited Australia three times in 2018/2019 to visit her son.  This demonstrates a very clear concern about him.  Despite the finding that the applicant is a genuine student, the Tribunal does have some concerns about whether the applicant is using the student visa to maintain ongoing residence in Australia so that she and her husband can be with their son.

22. The Tribunal has also taken into account the value of the proposed courses to the applicant’s future.  She has completed a Bachelor degree in Food Science in her home country but has not undertaken any further study since she completed that degree in 1999.  Furthermore, early childhood education is a very different field of study compared to food science and she has not studied any courses in this field before.  Despite the proposed courses being at a level lower than her current level of education, the Tribunal has taken into consideration that the applicant has changed career paths and is now exploring a new interest.  Accordingly, the Tribunal is satisfied the applicant is studying at a level consistent with her current level of education.

23. The applicant’s plans are to set up a private childcare centre in Mongolia.  She explained in her questionnaire response the following:

    Upon completing my studies, I am planning to start my own child care business in Mongolia, with a focus on clients, who prefer their children to learn English during their childhood, as well as the children of the foreign people residing in Ulaanbaatar (the capital city of Mongolia).  I am confident that I can make my plan a success, because I am aiming to provide quality childcare services and facilities to my clients.

    Please note that, there is demand for childcare centers in Mongolia, but there is no proper education and training in childcare industry.  Most child care centres are government owned and free; but the quality is not good, because about 70-80 children are crowded in one class.  Private childcare centers are better, because the class numbers are much less (about 20-25) and the facilities are off better standards and quality.

    Furthermore, the Mongolian government promotes private childcare centers and provides financial incentives in establishing such centers.  Also, the taxation office charges less tax for childcare business operators as they are providing valuable service for little children. 

    In addition to that, many parents would love to see their children to learn some English during their very early ages in addition to their mother tongue.  This means I can find clients without any problem.  I can also focus on attracting the children of the foreign people residing in Ulaanbaatar city for various reasons (especially for business reasons – please note that, Mongolia has a huge mining industry and there are many foreign companies doing business in Mongolia).

    I expect to earn more than AUD2,000.00 per month, which is a great income to make a comfortable living in Mongolia. 

    [sic]

24. Her evidence at the hearing about this was that the centre would be taking on around 20 to 25 children and that the fees per child would be MNT 200,000 per child (around AUS $90).  She said that the land she owns is empty and not being used at present, so they could use this land.  Her evidence in her statement to the Department is also consistent with the plans for the future she told the Tribunal about. 

25. The Tribunal is satisfied that the proposed course will assist the applicant in carrying out her future plans and that they are relevant to such plans.  While the proposed course bear no relation to her previous work in the food industry or manufacturing (fabrics), the Tribunal accepts that the applicant is genuinely interested in pursuing a career in early childhood.  At the age of 44, she has some business experience behind her, and it is not unrealistic or unexpected for her to change careers at this age.

26. The Tribunal is also satisfied that the proposed courses will lead to the applicant earning a good income in her home country and will see her remuneration increase from the AUS $7,500 she was earning in 2018 to, based on her estimate, around AUS $24,000 per annum.

27. Lastly, the Tribunal has had regard to the applicant’s immigration history.  She has travelled prior to coming to Australia to other countries including Czechia, the United Kingdom and the United States of America.  She told the Tribunal that she spent 1 year working in a fabric factory in Czechia in 2002.  There is no evidence that the applicant has failed to comply with the conditions attached to her Australian visas, or the visas for these other countries.  Furthermore, there is no evidence that the applicant has ever been refused a visa or had a visa cancelled by another country.  The Tribunal is satisfied that the applicant’s immigration history does not suggest she is intending on maintaining ongoing residence in Australia rather than return to her home country after the completion of the proposed courses. 

28. There were no other relevant matters raised by the applicant for consideration.

29. Despite the concerns held by the Tribunal about the applicant’s intentions for staying in Australia to accompany her son, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant meets cl.500.212(a).

30. 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.

31. Given the above findings, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

32. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Elizabeth Tueno
    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.