Joshi (Migration)

[2020] AATA 4577

Joshi (Migration) [2020] AATA 4577 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chandani Joshi

CASE NUMBER:  1912173

HOME AFFAIRS REFERENCE(S):          BCC2018/5772786

MEMBER:Brian Camilleri

DATE:4 November 2020

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 04 November 2020 at 12:50pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – changes of study area and cancellation of some courses for medical reasons – value of course to applicant’s future – level and cost of course – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

CASE
Hasran v MIAC [2010] FCAFC 40

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 1 May 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 21 December 2018. 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 was not represented by a Migration Agent

5. On 30 April 2020 the Tribunal wrote to the applicant pursuant to s.359 (2) of the Act, inviting the applicant to provide information in writing of the courses she was undertaking and her study and stay in Australia. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed period, being 14 May 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. On 12 May she applied for an extension, which was granted to 8 June 2020.

6. On 9 June 2020 she responded (outside of the extended time granted). In her s359(2) response, the applicant did not consent to a review by the Tribunal. However, since her response was received after the extended deadline, she had lost her right to a hearing. In these circumstances, s.359C applies and pursuant to s.360 (3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without a hearing but nevertheless taking into account all the information provided by the applicant.

7. The Tribunal, in its discretion, has reviewed and considered her response and the documents attached, which included: (a) a completed M-17 Form, including further details on her studies; (b) a six-page Statement of Purpose; (c) a Confirmation of Enrolment (CoE) from Royal Melbourne Institute of Technology confirming she was approved to commence a Bachelor of Nursing course on 20 July 2020 to end on 31 December 2022.

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

   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 fulfils the genuine temporary criterion.

   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.

    Applicant’s circumstances in home country

13. The applicant is married. She has parents living in Nepal. Her husband is in Australia and is listed as an unaccompanied family member in her Student (TU500) Visa application. She studied a Diploma of Pharmacy for two years, which was completed in 2012. She worked for a year as a Pharmacist until 2013.

14. She stated that she has always had an interest in helping people in need. She wanted to study after having examined international alternatives and determined Australia was the best suited to her goals.

    Applicant’s circumstances in Australia

15. The applicant first arrived in Australia on a Student (TU572) Visa on 9 August 2014 (valid until 30 August 2016).

16. On 29 September 2016 she was granted a second Student (TU500) Visa (valid until 28 December 2018) for the following courses she was enrolled in: (a) Certificate IV in Information Technology; (b) Diploma of Information Technology; (c) Advanced Diploma of Information Technology (Network Security).

17. She worked as a Manager in a chicken store from 2016 and also for three months at a bakery. She listed assets of $10,000 cash in an Australian bank account. Her living expenses are $18,000 per annum.

    Applicant’s movement and immigration history

18. Since her arrival in Australia on 9 August 2014 the applicant has not departed. She remains onshore.

    Applicant’s academic progress and record

19. On 21 December 2018 she applied for a third Student (TU500) Visa and was enrolled in the following courses: (a) Certificate IV in Ageing Support; (b) Diploma of Nursing; (c) Bachelor of Nursing.  On 26 February 2019, the applicant was invited to respond in relation to her study history in Australia. She responded on 27 March 2019. The application was rejected on 1 May 2019.

20. At the time of making its decision the Tribunal had available to it the applicant’s academic record as set out in the Provider Registration International Student Management System (PRISMS) as at 10/07/2020. It showed the courses undertaken by the applicant.

Course	Status
Bachelor of Nursing (will commence 20/07/2020 and will conclude 31/12/2022)	Approved
Diploma of Nursing (commenced on 22/10/2018 and completed 30/12/2019)	Finished
Certificate IV in Ageing Support	Cancelled
Advanced Diploma of Accounting	Cancelled
Diploma of Accounting	Cancelled
Advanced Diploma of Networking Security (commenced  08/02/2016 and completed 30/06/2016)	Finished
Advanced Diploma of Information Technology Networking (Network Security)	Cancelled
Diploma of Information Technology (commenced on 13/07/2015 and completed on 30/12/2015)	Finished
Certificate IV in information Technology Networking (commenced 01/09/2014 completed 30/06/2015)	Finished

1. The applicant has completed four courses successfully and is now listed as “Approved” to commencing studies in Bachelor of Nursing.

2. Several courses in unelated fields are listed as “Cancelled”. In her Statement of Purpose, the applicant provided a detailed account of the reasons surrounding her cancellation of various courses, including a medical incident, which left her “overwhelmed and depressed”.

3. The Tribunal notes that the applicant entered Australia on a Student Visa in the VET (Vocational Education Training). Although she has changed course twice (to the Technology field and then to Accounting), she has since returned to her professional background in the Healthcare sector. She has completed a Diploma of Nursing and now wishes to study a Bachelor of Nursing, which indicates academic and career progression.

4. It is also not uncommon for students in their early twenties to be indecisive about their career path and to start studying a course to then discover another discipline and career is to their preference. This appears to be the case for the applicant.

   Value of proposed course to the applicant’s future prospects

5. Although the applicant deviated from her original qualifications and employment as a Pharmacist in Nepal by enrolling in a Diploma of Information Technology and Advanced Diploma of Network Security, she finished both courses. She enrolled in another (unrelated) course (Advanced Diploma of Accounting), which she did not finish. Nevertheless, she has provided adequate explanations for not completing those courses and the Tribunal accepts her statements in relation thereto.

6. The applicant responded to the visa application, review and appeal and requests for further information from the Tribunal.

7. She has substantiated her future plans for when she returns to Nepal. She makes the point that the hospitals in cities in Nepal are overcrowded due to the lack of medical practitioners. She sees a role for herself in disaster relief and in managing health care organizations, community education and shaping public policy etc..”

8. The course in which she is enrolled is in line with her original ambitions and career trajectory. It is the Tribunals view that she has established the value of these further studies to her own future and to her contribution to community welfare in her home country. The approved course entails considerable expense, with fees over the two-and-a-half-year course, exceeding $86,000. This is not the category of short, inexpensive courses that disingenuous applicants enrol in for the purposes of maintaining ongoing residency and work and not seriously study and stay in Australia temporarily. In the meantime, she is working in relatively low paid customer service jobs.  The Tribunal accepts the applicant’s claim that her parents are sponsoring her education and that her husband is supporting her financially.

9. Her course is currently listed as “Approved”. The  applicant has not yet commenced the course (pending this review of the Delegate’s decision), the Tribunal makes no adverse finding on this since high level universities (such as RMIT) do not generally allow students to commence course until visa issues are resolved. There has been extensive delay in the processing of the application for review and that is not in an way the responsibility of the applicant.

10. The Tribunal finds, based on the subsequent information provided by the applicant, that she is genuine in her desire to study and stay temporarily in Australia.

    Other relevant matters

11. The Tribunal considered whether there is any other matter that is relevant to the assessment of the applicant’s genuine intention to genuinely stay and study in Australia temporarily and finds that there are no other relevant matters to be taken into account.

12. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to study and stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

13. 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.

14. 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

15. 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.500.2112 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

    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.