Limbu (Migration)

[2020] AATA 2883

Limbu (Migration) [2020] AATA 2883 (17 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Chhima Limbu
Mr Sumir Singh Thakuri

CASE NUMBER:  1823848

HOME AFFAIRS REFERENCE(S):          BCC2018/1216994

MEMBER:Andrew McLean Williams

DATE:17 June 2020

PLACE OF DECISION:  Brisbane

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

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 17 June 2020 at 12:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entry – visa, study and work history – study difficulties at young age – physical and mental health – unsuccessful study in lower-level course in different subject area – re-enrolment at original level and subject area – connections to home country – family’s lifestyle, applicants’ future employment in family businesses and plans for children – decision under review remitted

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 30 July 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visas on 14 March 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant Ms Chhima Limbu (‘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 could not be satisfied that the applicant and her husband genuinely intended to stay in Australia only temporarily for study purposes.

4. The applicants appeared before the Tribunal by means of telephone on 29 May 2020 to give evidence and make submissions.

5. The applicants were assisted in relation to the review by their registered migration agent Mrs Diana Tong of Parish Patience Legal & Migration Services. At the conclusion of the hearing the Tribunal gave the applicant leave to submit further documents and written submissions in support of her application for review.  These were received by the Tribunal three days after the 12 June 2020 deadline for receipt of any further submissions or evidence set by the Tribunal.  Nonetheless, the Tribunal has exercised its discretion to still receive that material, and now take it into account.

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 Ms Chhima Limbu genuinely intends to remain in Australia only temporarily whilst studying, before returning to her own country, Nepal.

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 Ministerial 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 Ministerial Direction indicates that the factors specified within it should not be used as a checklist.  Rather, the Ministerial Direction is intended only as a guide for decision-makers, when considering the applicant’s circumstances as a whole.

11. The applicant is a married Nepalese woman, now aged 27.  Her husband, Sumar Singh Thakuri, now aged 32 has accompanied his wife to Australia.  Mr Singh does not work outside the home and is primarily engaged in home duties in support of his wife’s studies. Meanwhile he is fully financially supported by his parents, in Nepal.

12. Both the applicant and her husband are from wealthy, educated families. 

13. The applicant undertook her high school education at the Rockvale Acdemy at Kalimpong, an English language boarding school located in the hills district of Darjeeling, West Bengal, in India, where the applicant also happened to be school captain.  For many years the applicant’s father was a police officer in Singapore, before returning to Nepal and establishing a commercial cardamom farm.  Convinced of the benefits of western education, he sent each of his children (including here, the applicant) overseas to western countries to undertake further studies.

14. The applicant first arrived in Australia on an initial student visa on 4 March 2013 when aged just 20.  Upon expiration of the first student visa the applicant was granted another - on 7 April 2016 - valid until 15 March 2018.  The student visa application now up for consideration before the Tribunal, marks the applicant’s third request for a student visa and was made by the applicant on 14 March 2018.  At that point the applicant and her husband had already been in Australia on temporary student visas for five years.

15. Provider Registration and International Student Management System (‘PRISMS’) records reveal that the applicant had previously been enrolled in the following courses:

    -Diploma of Commerce;

    -Bachelor of Commerce;

    -General English (Beginner to Advanced);

    -Certificate III in Commercial Cookery;

    -Diploma of Hospitality; and

    -Diploma of Hospitality Management.

16. Initially, the applicant had enrolled for a Diploma of Commerce run at the Sydney Campus of Curtin College, with this diploma-level qualification then articulating into a Bachelor of Commerce, at the Sydney Campus of Curtin University. 

17. In parallel with her enrolment in a commerce degree, the applicant commenced working 20 hours per week in the restaurant and hospitality industry, in the manner permitted under the conditions of her student visa. 

18. Although passing all her other subjects, the applicant failed a core subject, Business Law.  Having failed business law the applicant was impelled to repeat that subject before being allowed to proceed with elective units and progress on to the Bachelor of Commerce. 

19. In the following semester the applicant again enrolled in business law, however she failed it, again.  The applicant then enrolled in business law for a third time, only to fail for a third time.

20. The applicant says that business law became a massive practical and psychological ‘roadblock’ for her.  Having failed business law three times in succession caused her to undergo a massive crisis of confidence and to hold serious doubts regarding her course selection and chosen path in life.  As part of that, the applicant convinced herself, in 2014, of the need to enrol in an English language course, before attempting business law for a fourth time.  The Tribunal notes that the applicant undertook her high school education in an international English-speaking school in India and to have scored exceedingly well on her IELTS assessment.  Additionally, the Tribunal observes that during the telephone hearing on 29 May 2020 the applicant spoke and understood English at a sophisticated level.  Nonetheless, the Tribunal accepts that, back in 2014 when aged just 21, and hard on the heels of her having failed business law three times in a row that the applicant may have –felt the need to spend the better part of 12 months on a ‘scholastic detour’ in an effort to improve her English.

21. In 2015, and when now aged 22, Curtin College informed the applicant that their Sydney Campus was closing, and she would need to re-locate to Perth to finish her diploma under their auspices.  Also in 2015, [unforeseen medical issues].  The applicant says that these factors, on top of the difficulties already confronted in her efforts to pass business law led to her entering an dark epoch: one marked by [medical condition]. 

22. At that time, the only aspect of any success in the applicant’s life in Australia was to be found in her part-time job, employed at the ‘Envy’ Deli Café in Sydney.  The applicant says this job brought her much enjoyment and a sense of camaraderie with her fellow employees.  In light of this (and by that stage facing an acute need to change education providers if she was to remain in Sydney), the applicant elected - in January 2016 -  to enrol in a Certificate III in Commercial Cookery, together with a Diploma in Hospitality, conducted by the Australis Institute of Technology and Education. 

23. With the benefit of hindsight, the applicant now says that these cookery studies were disastrous, and her decision to attempt a career change towards hospitality and cookery was a complete mistake, in some respects foisted upon her by poor advice from those whom stood to gain financially from her enrolment in that course.  The applicant commenced mid-way through the term and was expected to complete the missed assignments whilst simultaneously undertaking the on-going cookery curriculum.  Eventually, it all proved too much, and the applicant withdrew.

24. In early 2018, the applicant enrolled in a Diploma of Accounting at Skyline International College.  This course was completed by the applicant in July 2019, whereupon she enrolled in an Advanced Diploma in Accounting at the same institution.  This too was completed by the Applicant, in April 2020. 

25. The applicant now has a letter of offer from the Melbourne Institute of Technology dated 27 May 2020 to undertake a Bachelor of Business (majoring in accounting), with 12 months credit already accrued towards that three year degree on the basis of her prior successful completion of the Diploma and Advanced Diploma in Accounting.  That letter of offer is conditional upon the successful outcome of this application to review.  These studies - if commenced - will have the applicant remain in Australia until 30 June 2022, some 9 years and 3 months after her first arrival as a student on 4 March 2013.

26. The applicant submits that she has, in effect, now come full circle, and is once again enrolled to study a Bachelor’s degree in accounting, as had been the case when she first arrived in 2013.  Although her career goal had always been to undertake a business-related Bachelor degree, the applicant submits that she has now come to realise that in 2013 she was still too young and not at that time ready for the intensity of her original course in commerce; and that the other factors – as already traversed in these reasons – serve to explain her unproductive academic perambulations prior to April 2018, when she commenced the Diploma in Accounting at Skyline International College.

27. The Tribunal accepts the sworn evidence of the applicant regarding the factors that have prolonged her academic journey, thus far.  Yet, the key issue remains the question as to the genuineness of the applicant’s intent to now only remain in Australia temporarily, to obtain university level accounting qualifications.

28. The applicant submits that the following factors should be viewed as key determinants regarding her intentions to return to Nepal, as soon as she has completed her Bachelor of Business (Accounting):

    -The applicant’s objective in Australia had been to obtain a Bachelor’s Degree, in business or commerce.  Once that objective is attained, her reason for remaining in Australia will be at an end.  Delays in attainment of that goal are explicable, and do not detract from the genuineness of her intent to only be a temporary student entrant.

    -Both the Applicant and her Husband are from affluent, educated, land-owning families, replete with a retinue of household servants.  The quality of their lifestyle in Nepal is vastly superior to their current student lifestyle in Australia, and the applicant’s part-time employment in a Café in Australia.

    -The applicant is now aged 27.  She and her husband are now anxious to commence a family.  The applicant and her Husband wish to do that in Nepal, where they will have the support of their parents, and servants;

    -The applicant’s father expects the applicant to assist him with the business and marketing aspects of his commercial cardamom farm, and the applicant wishes to do that;

    -The applicant’s husband is an eldest son who is not employed outside the home.  His father is the director of a Nepalese finance company, the Jana Disha Savings and Credit Cooperative Ltd, and is nearing retirement age.  The applicant’s husband is expected to return to Nepal and to join the enterprise before his father retires.

    -The applicant has a well remunerated employment offer (dated 6 June 2020) for a position as an accounts manager with the Jana Disha Savings and Credit Co-operative Ltd, conditional upon her completion of the Bachelor of Business (Accounting). 

29. The Tribunal now accepts the submissions by the applicant regarding the weight that should attach to the evidence regarding the applicant’s connections with her home country of Nepal.  The Tribunal concludes that evidence is objectively sufficient to support a conclusion that the applicant does genuinely intend to return to Nepal, upon completion of her proposed studies in Australia, in June 2022.   

30. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia only temporarily, notwithstanding the fact of her prior academic travails. Accordingly, the applicant meets cl.500.212(a).

31. 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

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

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    Andrew McLean Williams
    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.