Gurung (Migration)

[2021] AATA 2532

Gurung (Migration) [2021] AATA 2532 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Asmita Gurung

CASE NUMBER:  1934986

HOME AFFAIRS REFERENCE(S):          BCC2019/2970087

MEMBER:Wendy Banfield

DATE:30 June 2021

PLACE OF DECISION:  Canberra

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

Statement made on 30 June 2021 at 11:48pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – applied for visa shortly before visitor visa due to expire – failure of some units of study and enrolment extended – no evidence of ties to home country provided – inconsistent evidence about future business plans – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 28 November 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 11 June 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) because it was determined the genuine temporary entrant criteria was not met

4. The applicant appeared before the Tribunal on 9 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. The applicant submitted the following evidence in support of the application for review:

   ·     Department’s decision record dated 28 November 2019

   ·     Applicant’s genuine temporary entrant statement (undated)

   ·     Applicant’s statement of purpose dated 6 December 2019

   ·     Passport information for the applicant

   ·     University of Canberra (UC) interim transcript dated 29 March 2021

   ·     UC proof of enrolment letter dated 26 March 2021

   ·     UC College English language completion certificate

   ·     Current Confirmation of Enrolment (COE) for a Master of Professional Accounting from 8 February to 31 December 2021.

7. The Tribunal also considered the evidence provided to the Department at the time of application in this decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 student, as required for the grant of a student visa.

10. 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?

11. 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.

12. 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.

13. The Tribunal considered the applicants’ circumstances in her home country. The applicant declared she has her parents and her husband who continue to live in Nepal. In her genuine temporary entrant statement to the Department the applicant said she had worked in a health care centre in Nepal. During the hearing the applicant said she had also gained some work experience in Denmark in ‘staffing and hospitality’ and that she currently has an online marketing position. She gave her educational background as follows:

    I completed my S.L.C (School Leaving Certificate) with 1st division in 2009 from Nepal board and higher secondary with 2nd division in 2011from Oxford Higher Secondary School (Rupandehi, Butwal) from Higher secondary education board. I completed my Bachelor’s Degree in Business studies from Birendra Memorial College (Tribhuvan university), Dharan Sunsari on 2014 securing 2nd division. For my post graduate, I got enrolled into Nielsbrock Copenhagen business college (affiliated to De Montfort University) Copenhagen, Denmark.

14. The applicant claimed at the Tribunal hearing that she found living in Denmark difficult due to the cold weather and the lack of any family there and she only completed a Graduate Certificate in International Business. She indicated in her written submissions that she decided to study in Australia because of the educational and living environment and because her parents in Nepal, and brother in Australia will provide support. Reasons to return to Nepal in future were said to be duty to her country and to her parents who have supported and encouraged her studies. The applicant did not provide any evidence of financial or economic ties to Nepal. The Tribunal accepts the applicant has ongoing personal ties to their home country due to the presence of family, including her husband, but is not satisfied those circumstances would serve as a significant incentive to return to her home country. This is because the applicant has been prepared to live away from her spouse and extended family while in Australia awaiting the outcome of this review.

15. In Australia the applicant has completed a UC English Language Program from 20 May 2019 to 26 July 2019. She was enrolled in a Master of Professional Accounting from 5 August 2019 to 30 June 2021 but provided a further COE for the master’s course that began on 8 February 2021 and ends on 31 December 2021. The applicant did not explain why she has acquired a further COE for her post-graduate course, but it appears from the academic transcript from UC that she failed some of the units. A ‘Proof of Enrolment’ letter from UC dated 26 March 2021 states the applicant had achieved 27 credit points towards her Master of Professional Accounting but requires 48 to complete it. The applicant was meant to complete the course in June 2021 but in March 2021 she had only completed 56% of the program. This percentage does not take into account the units the applicant was enrolled in and not yet received the result for, however, it does appear that she was unable to finish the course in the designated timeframe due to some unit failures. Since the applicant indicated studying in Australia with family support and in English would be easier than in Denmark, it is concerning she was not able to complete her post-graduate course without extending her temporary stay in Australia further.

16. The applicant declared she has a brother living in Australia and that she has lived with him and been provided with support. In her written statement the applicant declared that before visiting Australia, she had been planning to return to Denmark:

    I have always heard from my brother and friends that Australia is a tourist attraction, so I decided to travel to Australia before going back to Denmark. After coming to Australia, I have been living in my brother's house. During this period, I visited my friends in Canberra and Sydney. At the meantime, I feel it is not as cold here as Denmark. Also, the learning environment and climate are much better than Denmark as Australia is also English speaking country so it is more easier for me to communicate with people around me. In the process of communication with friends, I learned about Canberra University and checked the information online. So, after consulting with my family, I decided to apply for MPA from the University of Canberra.

17. The Tribunal is not satisfied the applicant came to Australia as a genuine temporary visitor and considers that based on her evidence, she had already formed the intention to study and extend her stay for a prolonged period. By applying for a student visa onshore, the applicant circumvented the offshore application requirements. The Tribunal finds the presence of the applicant’s brother in Australia presents a strong incentive for her to remain and these factors weigh against her in assessing the genuine temporary entrant critera.

18. Regarding the value of the course to the her future, the applicant provided general reasons for why she had decided to study accounting. In her (undated) written statement received in 2019 the applicant declared:

    I am preparing myself to continue my post graduate study in professional accounting which is going to commence from 2019 at facility location of Canberra. I completely understand the importance of accounting and its relevance in modern world. I am interested in upgrading my expertise in other related subjects in additional to developing my professional potentials. This is the reason I have chosen Accounting as a subject of research. I am quite interested in pursuing a career in accounting as I feel that this subject can be considered as an art because each and every detail needs to be analyzed carefully so as to reach a wise decision. My main goal is to finally become an accountant executive. I am hoping that University of Canberra can provide me with the understanding needed to thrive in the business world. I am a very promising student who will do my best to contribute my skills in this course…

    After completing my graduation, I believe to teach and help students learn about accounting and all the opportunities available today and continue my work as an accountant as well.

19. At the Tribunal hearing the applicant claimed she had wanted to study accounting because her father worked in that field. Her evidence about her future plans was not clear because referring to work in the accounting sector, she also spoke about a plan to open a business running fitness classes. When questioned about the inconsistency the applicant said accounting is applicable in a number of fields. In her written statement of 6 December 2019, the applicant gave vague and imprecise details about her future career and stated: At present, my main task is to complete the MPA course, master all the business knowledge learned, and then achieve my dream. Having considered the applicant’s submissions on this criterion, the Tribunal accepts qualifications in accounting would be of value in the applicant’s home country. Due to the lack of a clear career plan however, the Tribunal is only able to place some weight in the applicant’s favour.

20. The applicant’s immigration history refers to her visa and travel history. The applicant arrived in Australia on 23 March 2019 holding a Subclass 600 visitor visa that was valid until 23 June 2019. Shortly before her visitor visa expired, on 11 June 2019 the applicant applied for the student visa which is the subject of this review. During the hearing the applicant was asked if she was planning any further study after her current course and she replied that at the moment she has no plans. She also indicated that after graduating, she would like to gain some experience before returning to Nepal. The Tribunal is not satisfied that a visitor to Australia who is intending to travel for a limited stay would change their plans so substantially and remain in Australia for at least two years and nine months (the date the master’s course is due to be completed). This is particularly the case when the applicant has not made definite plans to return to Nepal after completing her course and is contemplating other options such as work experience in Australia. The Tribunal finds these circumstances, including the applicant’s further enrolment until December 2021 indicates the student visa is being used primarily for maintaining ongoing residence.

21. The Tribunal had access to the Provider Registration and International Student Management System (PRISMS) records which was found to be an accurate account of the applicant’s study history. The Tribunal was satisfied it did not contain any information adverse to the applicant’s case.

22. Having weighed the evidence individually and cumulatively, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant does not meet cl.500.212(a).

23. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

24. 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

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

    Wendy Banfield
    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.