Jugjali (Migration)

[2023] AATA 1541

Jugjali (Migration) [2023] AATA 1541 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Narmila Jugjali

REPRESENTATIVE:  Mr Muhammad Salman Khan (MARN: 1806993)

CASE NUMBER:  2116245

HOME AFFAIRS REFERENCE(S):          BCC2021/130851

MEMBER:Damian Creedon

DATE:16 March 2023

PLACE OF DECISION:  Perth

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(a) of Schedule 2 to the Regulations.

Statement made on 16 March 2023 at 2:53pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – GTE Statement – study gap – future career pathway – economic incentive – came onshore as a dependent of then husband – academic progression – decision under review remitted

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

CASES
Hasran v MIAC [2010] FCAFC 40
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

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 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 January 2021. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 9 June 2022 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information to the Tribunal in writing about the course(s) of study she is undertaking and her entry and stay in Australia as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing within the prescribed period, ending 22 June 2022, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant did not request an extension of time and provided the information outside of the prescribed period.  In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an 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.

6. In these circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information. The Tribunal has had regard to all the information before it, including the information provided to the Tribunal by the applicant, and the information previously provided by the applicant to the Department.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant.

2. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

3. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision.[2]  The Court went on to note that:

   [The Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case.  Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.[3]

   [1] [2020] FCAFC 16 (24 February 2020).

   [2] Kumar, Para [82].

   [3] Kumar, Para [96].

Overview of evidence

1. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

2. The applicant is a 24-year-old Nepalese national who first arrived in Australia on 16 March 2019 as the holder of a Student Dependent (TU500) visa. 

3. The delegate’s decision record, dated 28 October 2021, notes the following relevant information:

   The applicant has recently separated from their spouse and has declared no dependent children. The applicant’s highest qualification completed in their home country is Year 12 in 2018. The applicant has declared no employment in their home country.

4. Accompanying the applicant’s application to the Department was a written statement addressing the ‘genuine temporary entrant’ criterion (GTE Statement).  Where relevant the GTE Statement will be referred to by the Tribunal in its analysis below.

5. According to evidence submitted by the applicant,[4] since arriving onshore she has successfully completed the following course:

   [4] See: Completion Letter, 10 January 2023, Cambridge College Australia.

Course Name	Date Commenced	Date Completed
GE 1-4 General English	11/01/2021	06/01/2023

1. After a request for further information from the Tribunal, the applicant provided Overseas Student Confirmations-of-Enrolment (CoE)s for the following courses:

Course Name	Start Date	End Date
Diploma of Business	23/01/2023	19/01/2024
Advanced Diploma of Business	22/01/2024	17/01/2025

Analysis and findings

1. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

2. The applicant has been resident in Australia for four years, since March 2019.  In that time, she has held a Student (Dependant) visa and is currently onshore on a bridging visa pending the outcome of her application as a primary applicant for a Student visa. 

3. In her GTE Statement the applicant states, in essence, that her motive in seeking to study in Australia is because Australian qualifications are globally recognised.  She states that they are affordable when compared with similar countries, and that Australia has proven to be a friendly and safe environment since she has been onshore.  Of themselves, although they are somewhat generic, these reasons suggest a rational and reasonable motive for an international student to choose to study in Australia and they do not cause the Tribunal concern.

4. The applicant’s evidence to the Tribunal is that she completed her School Leaving Certificate in Nepal in June 2016, and her National Examination Board (Year 11 and 12) in August 2018.  The Tribunal accepts, therefore, that she is well qualified to undertake English-language and vocational studies in Australia.

5. In her GTE Statement the applicant states that (uncorrected):

   …there is a gap from my previous study and to start fresh with basic, I have decided to study General English and then I will upgrade my education.

6. In respect of her future career pathway, the applicant’s evidence is somewhat meagre, stating merely that upon the completion of her studies she intends returning to Nepal to “engage” in the tourism industry there.  She cites the advantage of possessing English-language skills but fails to tie these aspirations with her proposed studies in Business.  Notwithstanding this, the Tribunal is prepared to extend the benefit of the doubt to the applicant in this regard given the subject matter she intends to pursue.

7. It appears from the information supplied by the applicant in her parents and brother reside in Nepal.  The Tribunal accepts that these personal ties provide some incentive for the applicant to return there.  Balanced against this is her decision to reside in Australia, apart from her family, for four years and to seek to extend her visit by a further two years.  Notwithstanding this, and making allowance for the applicant’s age, and the circumstances of her arrival onshore as a dependant, the Tribunal places some small weight on this factor in her favour.

8. The Tribunal notes the applicant’s evidence that she is earning a reasonable wage in Australia as an agricultural worker, however it is not prepared to conclude on this evidence alone that the applicant has no economic incentive to return to her home country upon the successful conclusion of her studies in Business.

9. There is no evidence before the Tribunal of any civil unrest or military service commitments in the applicant’s home country that would act as a clear incentive for the applicant to remain in Australia. There is also no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  Overall, the applicant’s immigration history does not raise concerns for the Tribunal. 

10. The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has family ties to his home country and all the other matters he has raised.

11. The applicant’s case is marginal.  Although her application to the Tribunal is marked by meagre information concerning many of the criteria for the grant of a Student visa, the Tribunal places weight upon the facts that:

    a.the applicant was only 20 years old when she first came onshore as a dependent upon her (then) husband’s Student visa;

    b.she has maintained her enrolment in, and successfully progressed with, her studies to date as she stated she would do some two years ago; and

    c.she is presently enrolled in a study pathway which evidences a reasonable academic progression towards an identified career outcome.

12. Taking these matters into account the Tribunal is not persuaded at this time that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme.

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

1. 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(a) of Schedule 2 to the Regulations.

Damian Creedon
Member

Attachment – Direction No.69

DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)

I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

Dated: 18 April 2016

Peter Dutton

Minister for Immigration and Border Protection

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

Part 1 of Direction No. 69 - Preliminary

Name of Direction

This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Regulations mean the Migration Regulations 1994.

Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Spouse has the same meaning as the definition of the term in section 5F of the Act.

Student visa means a Subclass 500 (Student) visa

Student Guardian visa means a Subclass 590 (Student Guardian) visa.

Application

This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

Preamble

The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

d.any other relevant matter.

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

4. Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country

1. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

2. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia

1. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

1. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

The applicant's immigration history

1. An applicant’s immigration history refers both to their visa and travel history.

2. When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   b.Previous travels to Australia or other countries, including:

   i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

1. If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

Any other relevant matters

1. Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.