kandel (Migration)

[2019] AATA 1997

kandel (Migration) [2019] AATA 1997 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sujan Kandel

CASE NUMBER:  1731978

HOME AFFAIRS REFERENCE(S):           BCC2017/3149125

MEMBER:M. Edgoose

DATE OF ORAL DECISION:  17 June 2019

DATE OF WRITTEN STATEMENT:         18 June 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 18 June 2019 at 8:53am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of time in Australia – poor academic progress – economic disparity – value of course – future plans – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 December 2017 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 30 August 2017. 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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 17 June 2019 to give evidence and present arguments.

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

6. The Tribunal gave its decision on the review at the conclusion of the hearing held on 17 June 2019. The following are the reasons for that decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

9. 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?

10. 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.

11. 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.

    The applicant’s immigration history

12. The applicant first arrived in Australia on 3 January 2015 on a 573 Student visa to complete a Diploma of Business followed by a Bachelor of Commerce. The applicant completed the Diploma of Business between 21 January 2015 and 25 September 2015. The applicant stated at hearing that he did not complete the Bachelor of Commerce course for which he was granted his 573 student visa.

13. The applicant admitted at hearing that he has not completed any of the courses in which he has enrolled in since 25 September 2015. The applicant stated at hearing that he has been enrolled in two Bachelor of Commerce courses through different education providers and a Bachelor of Professional Accounting through Holmes Institute. The applicant submitted to the Tribunal a Confirmation of Enrolment for a Bachelor of Business through Stott’s College that is due to commence on 22 July 2019 and be completed by 1 July 2022.

14. The applicant applied for his current Vocational Education and Training Sector Student Visa on 30 August 2017. The visa application was refused on the 4 December 2017 as the delegate was not satisfied the applicant met cl.500.212.

15. The applicant informed the Tribunal that he has only departed Australia on two occasions since arriving in Australia in January 2015. The applicant stated to the Tribunal that he returned to his home country of Nepal on 29 October 2016 to visit his family for a period of 35 days and on 22 February 2017 for a period of 16 days for his sister’s marriage ceremony. The Tribunal considers the applicant’s travel movements neutral.

16. The Tribunal does not make an adverse finding against the applicant in terms of cl.14(a) of Ministerial Direction 69, as there was no evidence before the Tribunal that the applicant had made previous applications for Australia or other countries. In relation to cl.14(b)(i), (ii) and (iv) of Ministerial Direction 69, the Tribunal does not make any adverse findings against the applicant.

17. In relation to cl.14(b)(iii) of Ministerial Direction 69, the Tribunal is of the view that the applicant has been onshore for some time without successfully completing a qualification and that the applicant is using the student visa programme primarily for maintaining ongoing residence in Australia.

    The applicant’s circumstances in their home country

18. The applicant informed the Tribunal that he had not completed his studies back in Nepal although there are similar courses available there. The applicant stated in his 359(2) response that in Nepal “the teaching technique is in traditional manner which includes text book and courses are not updated according to time. The main difference would be acknowledgement of the qualification. As the education provided in Australia is recognized all over the world where as the education provided back in my country is not recognized in various parts of the world which proves to be a drawback”. The Tribunal does not accept the applicant’s response given that at hearing he was not able to provide any information about the Bachelor of Business course through Stott’s College. The applicant never started or completed a course of study post high school back in his home country of Nepal. The applicant has not completed any course of study since 25 September 2015. The Tribunal considers that a Bachelor of Business, or a similar course, is available in the home country or region of the applicant. The Tribunal finds the applicant does not have reasonable reasons for not undertaking a Bachelor of Business course in his home country or region.

19. The applicant informed the Tribunal that his personal ties back in his home country of Nepal are his parents. His father is a farmer and his mother is a housewife. The applicant has a sister who is currently in Australia with her husband on a temporary visa. The applicant said to the Tribunal that he maintains contact with his parents back in Nepal on a daily basis via the social media application Viber. In these circumstances, the Tribunal does not consider that the applicant’s personal ties overseas would serve as a significant incentive to return to his home country and for the applicant to cease residence in Australia.

20. The applicant stated at hearing that before coming to Australia he completed his year 12 equivalent in 2012 and had worked as a cook for a period of 18 months and was paid AUD2250 per annum . The applicant stated to the Tribunal that he has been working 20 hours per week part time at Hunter and Barrel Restaurant in Ringwood for approximately four  years and is paid AUD420 per week. The applicant stated that he receives between AUD6000 and AUD7000 every six months from his parents back in Nepal. The Tribunal considers the economic circumstances within Australia for the applicant, where he has maintained steady employment and is financially supported by his parents, would present a strong incentive for the applicant not to return to his home country.

21. The applicant informed the Tribunal that he has no concerns or requirements regarding military service commitments or political or civil unrest in his home country of Nepal. The Tribunal accepts the applicant’s evidence that he does not have any military service commitments in his home country and he is not aware of any political or civil unrest in his home country.

22. The Tribunal does not make an adverse finding against the applicant in terms of cl.10 of Ministerial Direction 69, as there was limited evidence before the Tribunal in regard to the applicant’s circumstances in his home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

23. The applicant has significant ties within Australia, most notably his employer who has offered to sponsor him and his sister who is in Australia on a temporary visa with her husband. The applicant stated at hearing that his employer, Hunter and Barrel Restaurant has offered to sponsor him under the employer nomination stream. The applicant stated at hearing that at this stage his employer had not made the application for the visa. The Tribunal considers that the applicant does have significant ties within Australia and that this would present a strong incentive to remain in Australia.

24. At hearing the applicant informed the Tribunal that he intends to start and complete the Bachelor of Business course through Stott’s College  which is due to commence on 22 July 2019 and be completed by 1 July 2022 at a cost of AUD49,800. At hearing the applicant was not able to provide the Tribunal any information about the content of his future course other than the name of the course and that the education provider was highly respected. The Tribunal is not satisfied that the applicant will complete this course given his lack of academic success since September 2015. The applicant has been enrolled in the same genre of courses three times through a different education provider on each occasion since November 2015 and has not completed any of the Higher Education level courses. From 9 November 2015 the applicant was enrolled in a Bachelor of Commerce through CDU which he did not complete. From 13 March 2017 the applicant was enrolled in a Bachelor of Commerce through Kent Institute which he did not complete. From 6 November 2017 the applicant was enrolled in a Bachelor of Professional Accounting through Holmes Institute which he did not complete. The applicant is now enrolled in a Bachelor of Business through Stott’s College which is due to commence on 22 July 2019. The Tribunal has little faith that the applicant will actually commence this course given his lack of academic success over the past approximately four years. For these reasons, the Tribunal finds the applicant is using the student visa programme to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.

25. The Tribunal acknowledges the submission made by the applicant to the Tribunal (AAT Folio 65) that mentioned his poor academic record and the natural disaster that took place in Nepal. In his submission the applicant made no mention of his ability to maintain a steady job in Australia during the time in which he was not able to complete any study and that his employer had offered to sponsor him through the employer nomination stream which would look to a possible migration outcome. The Tribunal places limited weight on the submission made by the applicant.

    Value of the course to the applicant’s future

26. The Tribunal considers the future course the applicant is enrolled in is not consistent with the other course the applicant has completed during his time in Australia. The Tribunal does not accept that the Bachelor of Business is at the next level in which the applicant should be enrolled in given his poor academic progress during his previous enrolments in courses of the same genre. The Tribunal is not satisfied the applicant will actually commence or complete the course given that he has not completed a course since 25 September 2015 and that this course is not due to start until 22 July 2019. The only course that the applicant has completed since arriving in Australia was an eight month Diploma of Business course between 21 January 2015 and 25 September 2015. The Tribunal considers the applicant’s future plans do not lie out of Australia and that he is using the student visa to maintain ongoing residence in Australia. The applicant stated that on his return to Nepal in the future he plans to be a successful entrepreneur in the retail industry and that he believes he will be remunerated in the vicinity of AUD3500 per month. The Tribunal considers the applicant’s future plans to be both speculative and vague. The Tribunal, in taking into consideration the evidence provided by the applicant at hearing, is of the view that the relevance of the course to the applicant’s proposed future employment either in the home country or a third country is not relevant, given that he plans to work in the retail industry.

27. The applicant stated in his 359(2) response “I have been working as a COOK at Hunter & Barrel Restaurant in Ringwood. As I have been working for almost 4 years, my employer had offered to sponsor me for a visa under the Employer Nomination stream. Since then I had started working towards preparing fir it like doing the skills assessment, English, etc. Due to this I got distract from my studies. Moreover, I was told by my friends that I do not need to continue study as I would be lodging the visa application soon, which I now realise that was a huge mistake on my part.” The applicant stated at hearing that no application had been made and that he wanted to complete his course first. The Tribunal does not accept the applicant’s response given that he has not completed a course of work since September 2015 but has been able to work for approximately four years at the Hunter and Barrel Restaurant. The Tribunal considers the applicant’s primary reason for remaining in Australia is for work purposes and to gain a migration outcome.

28. The Tribunal considers the applicant has remained enrolled in courses of study to meet the requirements of being granted further student visas so that he can maintain ongoing residence in Australia and that the student visa programme is being used to circumvent the intentions of the migration programme.

29. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

30. 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.

31. 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

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

    M. Edgoose
    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.