Khanal (Migration)

[2021] AATA 985

Khanal (Migration) [2021] AATA 985 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Saraswati Khanal

CASE NUMBER:  1920977

HOME AFFAIRS REFERENCE(S):          BCC2019/1540245

MEMBER:Peter Booth

DATE:7 April 2021

PLACE OF DECISION:  Melbourne

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 07 April 2021 at 12:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied for student visa after arriving on tourist visa – enrolled at lower levels in different subject area than previous study – close to completing current course – family in home country and Australia – future business plans – factors closely balanced – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 July 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 27 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 17 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Pulasa Khanal, the applicant’s sister, and Mr Youbaraj Pandeya, the applicant’s brother-in-law.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 entrant.

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

8. 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?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated July 2019 refusing her application for a student visa. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.

12. The applicant said that she is currently enrolled in a Diploma of Hospitality Management which had “started 15 October 2020 and [will be] complete April 2021”. The applicant had produced a confirmation of enrolment document to the Tribunal in respect of such a course. The Tribunal observes that the confirmation of enrolment states that the course is expected to finish on 18 April 2021.

13. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2) of the Act. In summary, the information provided by the applicant was as follows.

14. Prior to arriving in Australia the applicant completed a Bachelor of Business Studies in July 2018. She stated that she was employed as an accountant, prior to arriving in Australia in February 2019, in respect of which she derived an annual salary of AU$4500.

15. She arrived in Australia on 12 February 2019 and since that time has not returned to her home country.

16. The application for the student visa in question was made in March 2019.

17. The applicant stated that she held a “visitor visa” between January 2019 and May 2019.

18. The applicant stated that she completed a Certificate III in Commercial Cookery between April 2019 and April 2020, that she was “studying now” a Certificate IV in Commercial Cookery which she commenced in April 2020 and had a “future enrolment” in a Diploma of Hospitality Management. The commencement and completion dates of the latter course were not stated.

19. The applicant did not provide any information in respect of her employment in Australia.

20. The applicant stated that her father, mother and brother reside in Nepal and that her sister and brother-in-law reside in Australia.

21. The applicant stated that her assets in Nepal comprise “land and building”.

22. As to her future employment plans the applicant stated:

    As I do have an ambition to become a cook and later on to become an entrepreneur; I found that this course has been designed with an objective of providing skills and competencies in an area of hospitality and tourism which will help me to materialise my career plan.

    I would like to return to Nepal after completion of my course and would like to establish myself as a successful Chef of Nepal and later on I would like to open my own business and establish myself as a successful women entrepreneur of Nepal. In addition, I would like to transfer my skills to underprivileged women in Nepal by voluntarily running cooking classes so that I can contribute to uplift their livelihood as well.

    Though COVID-19 has an adverse impact on Nepalese tourism; however I believe that this will be improved over the period of time. I believe that Tourism and Hospitality industry will be more promising in near future.

23. As to her expected future remuneration the applicant stated:

    I am expecting to get remuneration approx. $1000- $1200 per month while working as a Cook/Chef. After working for two years as a Cook/Chef; I would like to start my own International Resort in Pokhara Nepal. Pokhara is Nepal's number 1 adventure and Leisure City, a trekking gateway to the Annapurna's with plenty of entertainment for individual travellers as well as families with kids. ( I am expecting to generate more than $70,000 per year profit in an initial year of my business operation. I will be working hard to ensure that I can generate more than $90,000 profit per year after operating a business for 2-4 year. I truly believe that my previous study in Business, work experience as an Accountant and proposed course will provide me an edge to become successful business personnel.

24. The Tribunal proceeded to ask the applicant some questions arising from the responses above. The questions and the answers, in summary, were as follows.

25. The applicant confirmed that she arrived in Australia on 12 February 2019 as the holder of a visa described as “visitor, class 600”. When asked as to the expected duration of her stay in Australia she said “three-month”. When asked as to the purpose of her visit she said “visit sister and brother-in-law”.

26. The Tribunal asked the applicant when she had applied to be in enrolled in a course of study to which she said “March 2019”. When invited to be more precise she said “18 March”. She was asked why she changed her mind as to the purpose of her visit to Australia. She replied “after came to Australia met friends, they were happy, they encouraged me to think about this”.

27. The applicant confirmed that she had been employed prior to leaving Nepal. When asked whether she had taken leave from the job or had resigned she said “holiday”. When asked how long she had taken leave from her employment she said “three months”. The Tribunal asked the applicant whether she had since resigned her employment. She said “they have given me a holiday to study and I will continue my job”. The Tribunal asked the applicant how long her employers had given her to study and she said “until I complete the course”. She was asked whether she will return to her employment to which she said “no”. The Tribunal then asked the applicant why she had taken leave from her employment. She said “my intention is to study here, but I resigned”. She was asked when she had resigned. She responded “after started study on 27 March 2019”.

28. When asked as to her employment history in Australia, she said “haven’t worked”. The Tribunal asked the applicant how she was supporting herself and paying tuition. She responded “living with sister and brother-in-law helping me with all my expenses”.

29. The applicant confirmed that she had no assets in her name in Nepal.

30. She was asked as to her employment intentions when she returns to Nepal. She responded “after complete study I will go back I would like to work on Nepal I would like to work as a cook and during that period I will make sure I get enough knowledge and skill to establish my business that then established as a successful business entrepreneur”. When invited to expand upon this response she said “I want to establish myself as a successful businesswoman, I was working as an accountant I was thinking what else I would do then I found myself as a person, who likes travel and interacting with different people, cooking was my interest”.

31. When invited to add anything further to her evidence the applicant said “I have completed certificate three and certificate four in commercial cooking, I have been the in diploma of hospitality management and like to request an opportunity to complete my remaining course”.

32. The applicant’s sister, Ms Pulasa Khanal, said “she is my sister, I am here to support her financially for his study, I am pleased to have her with me, I would like you to consider her completion her course, she has been doing well”.

33. The applicant’s brother-in-law, Mr Youbaraj Pandeya, said “my sister-in-law that Lee’s here for the last few years, she is about to finish a course, she has done well through the study journey”.

34. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. One document is of importance, a statutory declaration dated 24 May 2020 , in which the applicant, among other things, stated “I would like to continue my study certificate IV in commercial cookery leading to diploma of hospitality management … I will return to my home country Nepal upon successful completion of the course”.

35. The applicant’s representative was invited to make submissions to the Tribunal. In summary those brief submissions were to the effect that the applicant was a good student and came from a good family. In response to a question from the Tribunal the representative said that he relied on the written submissions which had been filed prior to the hearing. These submissions are dated 24 May 2020 and broadly consistent with the applicant’s oral evidence. They have been taken into account by the Tribunal and given appropriate weight.

36. In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.

37. The applicant has completed a Bachelor of Business Studies in Nepal in July 2018. She was employed as an accountant in Nepal. She arrived in Australia as a tourist on 12 February 2019 and has not returned to her home country. She consequently changed her intention after she arrived in Australia and applied for a student visa in March 2019. She has completed a Certificate III and a Certificate IV in Commercial Cookery. She is a few weeks away from completing a Diploma in Hospitality Management. She has no assets in Nepal. Her family, with the exception of her sister and brother-in-law, reside in Nepal. Her sister and brother-in-law reside in Australia and are financially supporting her. She intends to work in hospitality. She is not currently and has not been employed in Australia. She has declared in a statutory declaration that she will return to Nepal upon completion of the current study.

38. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case.

39. On balance, the Tribunal considers it appropriate to give the benefit of the doubt to the applicant. Whilst she has significantly changed her career aspirations, the courses which she has completed in Australia and the course which she will shortly complete in Australia appear relevant to her new career path, in hospitality. The Tribunal notes that her last vocational course in hospitality, the Diploma of Hospitality Management, is due to finish very soon and that the applicant is currently studying. She is therefore close to completing the Diploma. Should the applicant make a further student visa application on the basis of her intention to undertake further study after this, the statutory declaration she gave to the contrary in connection with this case will clearly be relevant to any assessment of her intention to stay in Australia temporarily only to study and to return upon completion of the current course.

40. 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).

41. 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.

42. 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

43. 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.

    Peter Booth
    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.