Malla (Migration)

[2020] AATA 1977

Malla (Migration) [2020] AATA 1977 (12 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jitendra Malla

CASE NUMBER:  1819702

HOME AFFAIRS REFERENCE(S):          BCC2018/2415397

MEMBER:Steven Griffiths

DATE:12 June 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 12 June 2020 at 4.23pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – limited travel back home – career plans – courses previously studied – value of proposed course – 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 Home Affairs on 5 July 2018 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 5 June 2018. 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).

4. The applicant was assisted by his registered migration agent.

5. On 4 May 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study he is undertaking and his entry and stay in Australia as a student in writing. The invitation was sent to the applicant by his registered migration agent, Mr. Tejaskumar Patel, of Aussizz Migration and Education Consultants (Adelaide) SA, via email [email protected] and advised that, if the information was not provided in writing by 18 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The Tribunal notes a response to the s.359(2) of the Act request for information was received on 19 May 2020.

7. On 19 May 2020 the Tribunal wrote to the applicant inviting them to a hearing, pursuant to s.360(1) of the Act, scheduled for 9 June 2020.  

8. The applicant appeared before the Tribunal on 9 June 2020 to give evidence, respond to questions and present arguments. The Tribunal was conducted with the assistance of in an interpreter in the Nepalese and English languages, with the registered migration agent not taking part in the hearing.

9. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the parties on holding a telephone hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations, being if the applicant was a genuine temporary applicant for entry and stay as a student.

13. Clause 500.212 states the following must be satisfied:-

    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.

14. 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.

15. 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.

16. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the primary applicant with his application for review.

17. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 19 May 2020 as a response to the s.359(2) of the Act request for information, which includes:-

    (a)Completion of a Proficiency Certificate in Humanities and Social Science in February 2005 in Nepal.

    (b)Arrived in Australia on 15 October 2011 and has made two trips to Nepal to visit family in December 2014 and March 2019.

    (c)Has completed a ELICOS course, a Certificate lll in Horticulture, a Diploma of Horticulture, a Diploma of Agribusiness Management, a Diploma of Leadership and Management, a Advance Diploma of Leadership and Management, a Certificate lll in Commercial Cookery and a Certificate lV in Commercial Cookery in.

    (d)Commenced in March 2020 a Diploma of Hospitality Management which is due to be completed July 2020.

    (e)Intends to study a Advance Diploma of Hospitality Management, with the course to commence in August 2020 and be completed August 2021.

    (f)Has worked from November 2011 to now as a cook / chef.

    (g)Applicant statement dated 18/5/20.

    (h)Australian Government, Department of Education, Skills and Employment, Overseas Student Confirmation-of-Enrolment, Advance Diploma of Hospitality and Management, 4/8/20 to 24/8/21.

    (i)Academic Transcript for Diploma of Hospitality Management dated 13/5/20.

    (j)Record and Result and Statement of Completion for courses from January 2012 to March 2020.

    (k)School result and University study results from Nepal

    (l)Third Party report Nepal Tourism Statistics 2013.

18. The applicant is a 41-year-old male citizen of Nepal who arrived in Australia on 30 July 2009 on a 679 Visa, granted 17/6/09 and to cease 26/10/09, when he left Australia. He arrived again on 15 October 2011, on a Student 572 Visa granted 10/10/11 and to cease 11/2/14. He was granted another 572 Visa on 11/2/14 and to cease on 28/8/14. He was granted another 572 Visa on 28/8/14 and to cease 23/9/16. He was granted a 500 Visa on 11/10/16 and to cease 6/6/18 and has been a WA-010 and then WA-020 Bridging Visa from 5/6/18.

19. The Tribunal notes the applicant has left Australia twice to visit family, for a total of approximately 68 days, since arriving 30/7/09.

20. The Tribunal accepts the documented and oral evidence of the applicant that he married 22 years ago and has 3 children aged 8,13 and 19, with his wife and children having lived in Nepal at all times.

21. The Tribunal accepts the oral evidence of the applicant that he and his wife were separated from June 2018 to March 2019, with the relationship recommencing during his visit to Nepal in March 2019 when disagreements they had were resolved.

22. The Tribunal notes the oral evidence of the applicant that finding opportunities for to travel to Nepal to visit his family has been difficult due to identifying suitable length periods. The Tribunal identified to the applicant 3 periods between study commitments of 3 months, 4 months and 6 months, asking why the applicant did not travel then and was given an answer such as he was looking for a new course to study.

23. The Tribunal noted during the hearing the two times in which the applicant travelled to Nepal to visit family were during study course periods.

24. The Tribunal determines the responses of the applicant on the reasons for leaving Australia twice, for approximately 68 days, from arriving in Australia 8 years and 8 months ago to lack in detail and substance and are not accepted. 

25. The Tribunal notes the documented evidence of the applicant that he has worked in Australia since November 2011 as a cook / chef across 3 businesses but reflects on the Decision Record of the Student Visa application which notes the applicant commenced working in October 2009 identified following the hearing.

26. The Tribunal accepts the documented evidence of the applicant that while earning up to $36,000 per year for some of the period, his oral evidence on financial issues that he has been reliant on the financial support of his mother in Nepal in providing him with up to $10,000 per year is also accepted.

27. The Tribunal accepts the oral evidence of the applicant that since arriving in Australia in July 2009 he has not provided his wife and children with financial support, with their needs being provided by other family members.

28. The Tribunal accepts the oral evidence of the applicant that his study areas in Australia between 2009 and 2018 were determined by his parents and the employment / career goals they set, whereas he had long wanted to study in the food and hospitality areas and was eventually supported by his parents to make this area his focus from January 2019.

29. The Tribunal accepts the oral evidence of the applicant that he wishes to open an Australian cuisine restaurant, seating up to 25 people, in Nepal and that he will have the financial backing of his mother to achieve this.

30. The Tribunal questioned the applicant on the reasons to complete an Advance Diploma of Hospitality Management and the areas of study that have not been part of any of his previous study areas, and determines the responses of the applicant to be lacking in detail and substance and are not accepted and places significant weight on this as courses previously studied dealt with areas of management and leadership and the Tribunal believes they would provide a significant level of knowledge.

31. The Tribunal notes the student visa application detailed the applicant was seeking to study to the Diploma of Hospitality Management level, with this course due to be completed in July 2020.

32. The Tribunal notes the documented evidence of the Advance Diploma of Hospitality Management is to commence in August 2020.

33. The Tribunal notes the oral evidence of the applicant that he will be leaving Australia and returning to Nepal immediately after completion of the Advance Diploma of Hospitality Management in August 2021.

34. The Tribunal accepts the oral evidence of the applicant that he has contact with family in Nepal every 2 days.   

35. 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).

36. In accordance with the ministerial direction, the Tribunal asked the applicant of any circumstances in Nepal that may induce him to apply for a student visa as a means of remaining in Australia indefinitely. The applicant provided oral evidence to the Tribunal that there are not any reasons why he cannot return to Nepal and that he does not have any issues concerning military service, political or civil unrest.

37. There is no particular evidence regarding the applicant’s circumstances in his home country relevant to others in that country and the Tribunal makes no findings concerning the applicant in that respect.   

38. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

39. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

40. The Tribunal accepts the documented and oral evidence of the applicants having a private health insurance policy in place to 7 August 2020.

41. The Tribunal notes the oral evidence of the applicant that he has at all times complied with work limitation conditions imposed but was not provided with documented evidence to review and places little weight on this.

42. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

43. 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.

44. 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

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

    Steven Griffiths
    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.