Maharjan (Migration)

Maharjan (Migration) [2022] AATA 1042 (21 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bishal Maharjan
REPRESENTATIVE:  Mr Subhash Chandra Upadhaya (MARN: 1700445)
CASE NUMBER:  1935091
HOME AFFAIRS REFERENCE(S):          BCC2019/4957322
MEMBER:Warren Stooke AM
DATE:21 January 2022
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(a) of Schedule 2 to the Regulations.

Statement made on 21 January 2022 at 3:00pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – applicant has made continuous academic progress in his courses of study – genuine applicant for entry and stay as a student temporarily – personal ties to home country – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 November 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 October 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.
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 (Cth) (the Regulations) because the delegate was not satisfied the applicant intends to genuinely stay temporarily in Australia.
The applicant appeared before the Tribunal on 26 October 2021 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was because the Department said that there was no evidence the applicant will go back to his own country after he finishes the course.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 applicant for entry and stay as a student.
The Tribunal asked the applicant: Do you understand that to be that to be granted a Temporary Student Visa, it is a requirement that you satisfy the Minister that you are a genuine temporary entrant for stay as a student? The applicant responded: “Yes”.
The applicant is a 30 year old from Nepal, who arrived in Australia on 15 July 2019 on a Visitor 600 visa and provided evidence that he intended to be sponsored by his brother, but at the time was not a permanent resident.
The applicant provided evidence that he has a non-accompanying wife and son in Nepal.
The applicant was granted a Bridging Visa A on 3 October 2019 with condition 8101 – ‘no work’ and no travel. He stated that he applied for work rights because of Covid but this was not granted.
The applicant provided evidence that he completed a PTE English language test on 30 September 2019 with a score of 52.
The applicant provided evidence that he has health insurance with Bupa that is valid from 3 October 2019 to 2 March 2022.
The applicant stated that he completed the academic requirements of a Certificate IV in Commercial Cookery and was supposed to finish on 2 July 2021 but could not complete because of not having access to a placement during Covid restrictions and expects to complete before December 2021.
The applicant stated that he has to finish his Certificate IV in Commercial Cookery before commencing the Diploma of Hospitality Management course, which is now scheduled to commence in January 2022.
The applicant provided confirmations of enrolment for the following courses of study:
a.Certificate IV in Commercial Cookery from 19 July 2020 to 24 September 2021 (granted an extension re placement);
b.Diploma of Hospitality Management from 11 October 2021 to 8 April 2022.
The applicant provided the Tribunal with a response to a s359(2) request for information, as follows:
“Applicant expects to begin his own restaurant (business) that will earn good amount of revenue annually. In comparisonto AUD, the amount may seem minimal but applicant claims to be happy with his dream when his family is near by.
One thing is certain and that is the value of Australia degree back home since the degree comes with immense knowledge theoretical as well as practical. Hence, I am confident that after the completion of my course, it would be very easy to find a job in my country. The course provides a pathway to work in any hospitality industry sector as a department or small business manager. It provides me a diversity of employment opportunities with highly paid positions like banquet of function manager, café/ bar/ club manager, chef de cuisine / Patisserie, front office/ gaming/kitchen/ restaurant manager and so on. I am confident that my Australian qualification with the experience will be the highlighted part of my resume where I will be able to attract the employers easily comparing to others. I would not say that the worker in this industry back home is not qualified but I will be able to stand out among them with the skill I have learned in day-to-day work based environment with globally recognized standards. The fact that the employer back home does not have to spend time and money training me the global standard as I will be already knowing them as well as demonstrating in my practice of work.
My long-term goal is to open my own restaurant since it is my dream of life. As mentioned earlier, I had in my mind to do so when we decided to start the business back home when I was there in Nepal. I was not confident in establishing a new café/restaurant back then due to lack of knowledge, skill, and experience. However, now I am confident seeing subject outlines, units I need to complete added with work placements I need to attend, by the time I complete the course.
I understand that Nepal and Australia differ in many ways. So, the market, customer, food and beverages, culture, and lifestyle as well as the customer expectations. Hence to observe and understand few of these elements, I would love to look for the job in hotels that are there in Nepal and are doing good in the industry. Working, if possible, in holes like Hyatt, Dwarika, Soaltee, Annapurna would also give me the insight about the differences in hotels here in Australia and back home. I am hopeful that that these highly renowned hotels or small restaurant will favorably view prospective candidate with degrees and exposure from internationally recognized college in addition to possessing international work experience. I am glad to mention that I am already been offered a Job as ‘Restaurant Manager’by Hotel Swapna Bagh, Pokhara if I wish to go back when I return back home after I complete my study here in Australia. I believe I need to understand few but very crucial element before starting own business in food and industry back home like people taste for food and services, locations where my vers on of café/restaurant would just fit, overall budget I will be needing to start and maintain until the business starts paying me back, and the overall management. I want to work for other for some time to understand the market.
I am confident, I will be able stand out from people who are there due to my globally recognized degree, knowledge, and skill. However, my goal since my childhood is to start my own restaurant where I will be able to enforce my style and taste. Being in some of the regional and major city such as Sydney for so far, I have a plan as well as the overall picture of what my restaurant would look like. For example, the location, size, menu, restaurant interior and outer design, funding sources, customer, and the overall service to be provided. As I am continuing my study to Diploma of Hospitality, I am adding other important and relevant element in my future business.
Due to current technological era, people are learning new things everyday but in very intense pace. People lifestyles are changing. In Nepal too, people are getting busy and have started depending on food cooked outside in restaurant and hotels which is very good sign for people like me who intends to invest in this industry. Moreover, people are getting health-conscious food wise but have no idea what they are supposed to do. Blending hygiene, nutrition, taste, economy, and easy access would be milestone in this situation. I dream of establishing café/restaurant chain in Nepal that understands and respect people’s need in associated with factors mentioned above.
Food companies like Lite n Easy, Be Fit Food, Hello Fresh Meat Kit, Noom, Keto Meal have done so well in Australia. People are getting educated as well as health aware. As mentioned earlier, their lifestyles are changing and are need of something that would ease their necessity of healthy food that is affordable, consistent as well as easily available. I want to work on this field once I get back home after completing the course I have intended to. In addition to that, the current C OVID 19 Pandemic has changed people’s life. Now it is not necessary for one to visit restaurant/café to eat.
They can order sitting at their room and can enjoy meal as they were eating at the restaurant. Food delivery services such as DoorDash, Menulog, Delivervoo, Uber, Deliver Hero can be blue market Nepal if it is planned and managed properly.
Being a businessman back home, I am confident that I will be able to grasp the opportunity of the developing phase of the people of Nepal who are being busy and occupied which has helped the food industry to bloom in a great way. I am confident that I will create platform shortly to get the attention of competitive market there in my country Nepal which will recover my study investment within some years. I believe that my experience and knowledge gained in Australia would help me to contribute productively to the best of my ability and stand out in the market competition. I can also apply for the international job based on my study from Australia, the pathways are many. Today’s is the era of computer, camera, internet, and social media. I am certainly thinking of starting food blooding to educate people about food, health, hygiene, taste, and the experience they can enjoy.
I do have complete picture what I am going to when I return back home after completing my intended course. I want to be at my hometown with my parents, wife and son, friends and relatives doing my own business happy and satisfied.
Coming so far, I can sense the possibility I can have by the time I complete my course as I am made to learn things in different way even in this COVID 19 global pandemic. I am confident, I will be able to do something valuable after I return back home with the knowledge, skill and experience I will be gaining at the end to the course. I am confident that I will be different than what I was before I came to Australia. I am sure the opportunity I have got from my life would change my life for ever.”
The applicant stated that he lives in a share-house in Manlyvale with a college friend and pays $200 per week for living expenses.
The applicant provided evidence that he was employed in Nepal prior to arriving in Australia in the following employment:
a.Hotel Swapna Bagh Pvt. Ltd as a Restaurant Manager from 11/2016 to 02/2018 on a salary of $6,000
b.United Insurance Assistant in Underwriting Department from 1/2012 06/2016 on a salary of $5000.
The applicant provided evidence that he has the following family in Nepal and Australia:
a.Daya Laxmi Maharjan - Spouse in Nepal and last visited 07/2019
b.Innuff Maharjan - Child in Nepal and last visited 07/2019
c.Laxmi Devi Maharjan - Parent in Nepal and last visited 07/2019
d.Laxman Maharjan - Parent in Nepal and last visited 07/2019
e.Bishwas Maharjan - Brother in Australia and currently in contact.
The applicant stated that his father has been employed as an Insurance Manager for 20 years with United Insurance.
The applicant stated that he has an intention to become an Assistant Manager at the Hotel Swapna but also wants to do his own business.
The applicant stated in his GTE statement: “As I have almost completed Cert IV in Commercial Cookery and continuing with my Diploma in Hospitality Management, I believe I have acquired sufficient amount of knowledge as well as skill that I will be able to use in building my career in the field of food industry. I am confident, by the time I will complete my Diploma, I will be able to make difference in my career.”
The applicant provided evidence that he would not have any difficulty in assimilating back into Nepalese society and that he responded: “No”.
The Tribunal asked the applicant if there was any reason that would preclude the applicant from returning to Nepal and he responded: “No”.
The Tribunal asked the applicant if it was his motivation to remain in Australia permanently and he responded: “Not really, I have my family and my father will retire soon. I want to complete the course”.
The Tribunal asked the applicant, if he wanted to make any other comment and he responded: “I just want to study here and I have a family in Nepal”.
Genuine applicant for entry and stay as a student (cl 500.212)
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?
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.
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 Tribunal is satisfied that the applicant has successfully completed a Certificate IV in Commercial Cookery pending the finalisation of his work placement since arriving in Australia and will have commenced a Diploma of Hospitality Management, which is due for completion on April 2022 (subject to an extension with the delay caused by his prior learning placement). As such, the Tribunal is satisfied that the applicant has made good academic progress with his studies and that it is his intention to open his own restaurant upon return to Nepal.
Further, the Tribunal accepts that the applicant plans to return to Nepal upon completing his current course of study and that evidence was provided that the applicant maintains ties to his home country, with a wife and child residing in the country, together with other immediate family. In this regard, the applicant provided evidence that he has one brother living in Australia.
The Tribunal accepts that there is no known evidence before the Tribunal that would suggest that the applicant has not complied with his visa obligations and satisfactory academic progress has been undertaken since the applicant arrived in Australia.
The Tribunal is satisfied that the applicant has made continuous academic progress in his courses of study and utilised his access to study, as is intended with a genuine temporary entrant.
The Tribunal is satisfied that the applicant has stated he will return to his home country upon completion of his course and is not motivated to remain in Australia permanently given his career plans to engage in setting up a restaurant in his own country.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily to complete his courses of study and that a Student 500 visa should be granted for the period of completion of the current course.
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(a).
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
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.
Warren Stooke AM
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;
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
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.

[2022] AATA 1042

21 January 2022

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Immigration

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