Gurung (Migration)

[2024] AATA 2440

Gurung (Migration) [2024] AATA 2440 (28 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nancy Gurung
Mr Ugen Gurung

CASE NUMBER:  2208288

HOME AFFAIRS REFERENCE(S):          BCC2020/2908629

MEMBER:Frank Russo

DATE AND TIME OF

ORAL DECISION AND REASONS:         28 February 2024 at 11:55 am (NSW time)

DATE OF WRITTEN RECORD:                24 June 2024

PLACE OF DECISION:  Sydney

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

· Cl.500.212 of Schedule 2 to the Migration Regulations 1994.

Statement made on 24 June 2024 at 2:45pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – value of the course – ties to home country – course progression – academic history – intention to comply with visa conditions – decision under review remitted

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 17 May 2022 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (Cth) (the Act).

2. The first named or main applicant (the applicant) applied for the visa on 31 December 2020. 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 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal by telephone on 28 February 2024 to give evidence and present arguments.

5. At the hearing on 28 February 2024, the Tribunal made an oral decision and gave an oral statement of decision and reasons.

6. On 14 June 2024, the Department requested a copy of the reduction of the written reasons provided by the Tribunal.

7. The following is the written record of those reasons.

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

   CRITERIA FOR THE STUDENT VISA

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 temporary applicant for entry and stay as a student.

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

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.

    STATEMENT OF DECISION AND REASONS

13. I have considered all of the applicant’s circumstances. I note the delegate raised concerns about a number of factors contained in Direction No 69, including the value of the course to the applicant’s future, as well as her ties to her home country. I consider that the applicant has provided sufficient information to address these concerns. I also consider that I have had the benefit of time and seen the progress the applicant has made with her studies since she applied for the Student visa under review.

14. I give weight to the fact that the applicant has now completed the Diploma of Business Administration and the Advanced Diploma of Leadership and Management, which were the subject of the visa application under review. The applicant is now enrolled in a postgraduate programme, the Graduate Diploma of Management (Learning), for which the applicant has approximately one year to complete. As a postgraduate programme, I am satisfied that the applicant is progressing to a higher level of study, and she has provided a confirmation of enrolment for this course.

15. I give weight to the applicant’s successful completion of the courses which were the subject of the student visa under review, despite her application for the Student visa being refused. I also note in looking at the applicant’s academic history and enrolment history as a whole, that she appears to have a poor academic record for the period while she held the Student visa from 2018 to 2021, but since then has been performing well in her studies and appears to now be on track. The applicant also provided some explanation for her poor academic history while she held her first Student visa. This includes factors such as her relative youth at that stage, being in Australia on her own, her separation from her husband and the consequent marital issues that she experienced, as well as the impact which COVID-19 and the separation from her husband had on her mental health. The applicant also gave evidence of some administrative issues with one of the colleges that she was enrolled in. I consider that the applicant is currently on track, and given she has completed two courses of study while holding the Bridging visa, that she should now be given the opportunity to complete the postgraduate course that she is currently enrolled in. I consider that at present there is insufficient evidence to indicate that she is using the Student visa primarily to maintain ongoing residence or to circumvent the intentions of the migration program.

16. I am satisfied the course of study will be of value to the applicant’s future, and that she is here with the intention of obtaining qualifications which will assist her on return to Nepal. The applicant gave evidence of her mother’s ownership of a wholesale import and export business, which she plans to expand, and how she also plans to open her own business using the products from this business. I also note the evidence the applicant gave with respect to her father’s ownership of a hotel, and the opportunities she has to run the hotel with her sister. I accept the proposed course of study is consistent with these plans and will give her further skills in operating businesses and in managing and leading a business. I am also satisfied that as the applicant proposes to study a postgraduate course, this will improve her opportunities over and above the existing qualifications that she has at the vocational level.

17. I also accept the reasons the applicant provided at the hearing and in her s.359(2) response to the Tribunal, as to why she wishes to study the course in Australia rather than in her home country.

18. As to the applicant’s ties to Australia, I have no significant concerns. There is no evidence of any family in Australia. While the applicant has been working in Australia, there is no evidence that she has been building a career. She has also explained that the work she has been doing has helped her to gain additional skills and experience that she hopes to take back to Nepal. The applicant has been in Australia for a relatively short time. While I have noted the issues with her enrolment history while she held her first student visa, she has improved significantly since then. While holding the Bridging visa, she has remained enrolled and completed two courses of study within the last two years.

19. I am also satisfied that the applicant has strong ties to her home country, which will act as a strong incentive to return there. These include the presence there of her husband, her parents and her entire family, apart from her grandparents, who are living in the UK. She also gave evidence of the businesses that her parents own, as well as the land they own. I also accept that the applicant has returned to Nepal since arriving in Australia.

20. There is no evidence of any military service requirements or of any civil or political issues which would prevent the applicant from returning to Nepal.

21. As to the applicant’s immigration history, I do not consider it is overly extensive. I have raised concerns regarding a potential breach of Condition 8202 while the applicant was holding her first Student visa, however, she provided an explanation for why that breach occurred, and while holding a Bridging visa, she has now demonstrated that she is capable of meeting the enrolment and study requirements under Condition 8202. On this occasion I make no adverse findings regarding the applicant’s immigration history as a whole, given her improved enrolment and immigration history over the last two years.

22. I have considered all relevant matters and find that there are no other relevant matters to the assessment of whether the applicant intends to stay in Australia temporarily in addition to the matters covered above.

23. 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).

24. As to whether the applicant intends to comply with any conditions subject to which the visa is granted, the applicant has provided with her visa application an undertaking to comply with any conditions the subject of which the visa is granted. Although I have raised some concerns about potential breach of condition 8202 while the applicant held her first Student visa, I am satisfied that the applicant would now be capable of meeting this requirement, as she has met these requirements while holding a Bridging visa. She has maintained enrolment, has made progress with her studies and maintained satisfactory attendance.

25. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

1. As to whether the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter, I am not aware of any other relevant matter that gives rise to a concern that the applicant is not a genuine applicant for entry and stay as a student. 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.

2. 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.

3. 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

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

   ·cl 500.212 of Schedule 2 to the Migration Regulations 1994.

   Frank Russo
   Member