Poudel (Migration)

[2022] AATA 753

Poudel (Migration) [2022] AATA 753 (12 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjay Poudel

CASE NUMBER:  2004590

HOME AFFAIRS REFERENCE(S):          BCC2019/4727464

MEMBER:Wendy Banfield

DATE:12 March 2022

PLACE OF DECISION:  Canberra

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

Statement made on 12 March 2022 at 4:32pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – course benefit to future career – applicant changed to Vocational courses – plans to establish a business in Nepal – family ties in home country – significant employment experience in Nepal – maintaining ongoing residence in Australia – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, 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 18 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 September 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 (Cth) (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

4. The applicant appeared before the Tribunal on 22 November 2021 to give evidence and present arguments.

5. Prior to the hearing, the applicant submitted the following evidence:

   ·Department of Home Affairs (the Department) notification and decision record dated 18 February 2020.

   ·Applicant’s written statement received 30 September 2021.

   ·Applicant’s statement of purpose received 11 November 2021.

   ·Applicant’s written argument against visa refusal received 11 November 2021.

   ·Confirmation of Enrolment (COE) for a Certificate IV in Commercial Cookery from 10/01/2022 to 18/06/2023.

   ·Applicant’s Nepal passport information.

6. The Tribunal also considered information submitted to the Department at the time of application including: Application for a Student Visa form; Letter of Support dated 14 September 2019; statement of purpose; evidence of overseas student health cover; PTE Academic English test result; evidence of educational attainment in Nepal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

12. The Tribunal considered the applicant’s circumstances in his home country. The applicant is 33 years old and is married with one child. The applicant’s daughter was born on 12 June 2019. His parents and his wife and daughter continue to live in Nepal. The applicant’s background is as a chef and teacher. He said he worked for a hotel and resort in Nepal for seven years but was unable to find another restaurant job after that because he lacked professional skills. There is no evidence the applicant investigated options for pursuing his hospitality career further until he arrived in Australia as a short-term visitor. The applicant claims he is planning to open a restaurant in Nepal in future but has not demonstrated he has the ability or the means to do so. He has not provided any evidence of property, assets or economic ties to his home country and the Tribunal does not accept his bare assertions that he intends to return to Nepal for business or career reasons. The Tribunal places some weight on the applicant’s personal ties to Nepal because of the presence of family members but is not satisfied those circumstances would serve as a significant incentive to return to his home country.

13. In Australia, the applicant has a permanent resident brother who he was visiting when he entered Australia on 30 June 2019. In his evidence the applicant advised he has been living with his brother and sister-in-law in Australia and they have been supporting him. The applicant said he was studying a Certificate IV in Commercial Cookery previously but had to discontinue because his family in Nepal needed to use their financial resources for their own purposes due to effects of COVID-19. The applicant claimed that although he has no work rights in Australia, his brother has been able to support him financially while he re-enrols to study. The Tribunal finds the presence of the applicant’s permanent resident brother in Australia who can accommodate him and assist him financially provides an incentive for the applicant to remain in Australia. In addition, if the applicant were to be granted a Student visa, he would have work rights which provides further incentive not to depart. This is particularly the case given the economic disparity between Australia and Nepal, and the impact COVID-19 has had on the country.[1] The Tribunal finds the Student visa is being used to maintain ongoing residence in Australia beyond that permitted for short-term visitors.

    [1] Recent Economic Developments: A second wave of COVID-19 infections beginning April 2021 has led to renewed containment measures. Economic growth is now estimated at 1.8 percent in FY21, below previous expectations, and is projected to rise to 3.9 percent in FY22. Poverty is expected to increase, despite increased coverage of social protection in FY22 (from a low base). Downside risks to the outlook include delays in vaccine deployment, new COVID-19 variants, higher public debt burdens, and longer-term scarring of the economy.

14. Regarding the value of the course to the applicant’s future, the Tribunal considered whether the applicant 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 his home country. In his Application for a Student Visa form, the applicant indicated his highest level of schooling completed outside Australia was “Secondary School – Year 12 or equivalent”. In response to the question “Has the applicant completed or is currently enrolled in any other studies or training outside Australia?” the applicant answered “No”. The Department found the applicant had in fact completed a bachelor’s degree in Nepal that was not listed the application form. The applicant claimed in his written response that his agent advised him it was not necessary to include his tertiary qualifications since he was enrolling in a diploma course in Australia. The Tribunal accepts the applicant may not have been attempting to mislead when he failed to list his bachelor’s degree in his application. However, the applicant has enrolled in a vocational certificate course in Australia which is at a considerably lower level than a bachelor’s degree. The applicant may wish to pursue a career in hospitality but based on his evidence, he already had a significant work history in that field since he was employed as a chef in Nepal between 1 August 2007 and 1 July 2014. It was open to the applicant to build on that experience and undertake further study in Nepal if he wanted to pursue a hospitality career again in future. While the applicant claimed courses of study in Nepal are too theoretical, even if true, he already had practical workplace experience. The Tribunal does not accept the applicant was unable to find another restaurant job after leaving a position he held for seven years in Nepal and needed to study overseas for that reason. The Tribunal is also not satisfied that a person would leave their family and employment in Nepal to enrol in a relatively low-level vocational course in Australia without a greater level of planning. These issues weigh against the applicant in assessing whether he is a genuine temporary entrant for study.

15. The applicant’s immigration history refers to his visa and travel history. The applicant arrived in Australia on 30 June 2019 as the holder of a Visitor visa. At the hearing the applicant claimed he was in Australia to attend his brother’s birthday and wedding. He said after spending about 30 days in Australia, he liked the country and met friends who told him he could apply to study because he has experience as a chef. The applicant is now enrolled in a Certificate IV in Commercial Cookery from 10 January 2022 to 18 June 2023. This will take the applicant’s temporary residency in Australia to almost four years. The applicant claimed in his evidence that his family agreed to him being away from Nepal for four years to complete a course of study in Australia, and he has already lost two years of that time. Given the substantial amount of unproductive time that the applicant submitted was due to financial issues and depression, the Tribunal is not satisfied the applicant will complete a Certificate IV in Commercial Cookery on time and return to Nepal afterwards.  

    Conclusion

16. The Tribunal has assessed the evidence individually and cumulatively. While there are some aspects of the applicant’s case that weigh somewhat in his favour such as his enrolment to study, on balance the weight of evidence is against the applicant in assessing whether he is a genuine temporary entrant for study. 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).

17. Therefore, 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.

18. 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

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

    Wendy Banfield
    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.