POUDEL (Migration)

[2021] AATA 186

POUDEL (Migration) [2021] AATA 186 (26 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SWATI POUDEL

CASE NUMBER:  1918401

HOME AFFAIRS REFERENCE(S):          BCC2019/2707016

MEMBER:Brian Camilleri

DATE:26 January 2021

PLACE OF DECISION:  Sydney

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 26 January 2021 at 4:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – enrolment in similar course at lower level – close to completing course after considerable expenditure of time and money – general plans for return to home country and working there – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 May 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. The applicant appeared by telephone before the Tribunal on 19 January 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 complies with the genuine temporary entrant criterion.

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

7. 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?

8. 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.

9. 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.

   Applicant’s Circumstances in Home Country

10. The applicant’s parents and grandfather live in her home country of Nepal. The applicant listed no assets and no work history in her home country but this is not unusual considering the applicant came to Australia at a relatively young age.

    Applicant’s Circumstances in Australia

11. The applicant first arrived in Australia on 8 March 2014 on a Student (TU573) Visa (valid to15 March 2016). On 5 May 2016 she was granted a second a Student (TU573) Visa (valid to 29 May 2017).  On 29 May 2017 the applicant was granted a Temporary Graduate (VC-485) Visa (valid to 29 May 2019).

12. On 24 May 2019 the applicant applied for a third Student (Subclass 500) Visa. At the time she was enrolled in an Advanced Diploma of Leadership and Management course. Her application was rejected on 26 June 2019.

13. The applicant listed four work positions held in Australia: (a) customer service in 2014 earning $1400 per annum; (b) bar and gaming attendant (2015-18) earning $45,000 per annum; (c) bar and gaming attendant (2018-19) earning $53,000 per annum; (d) finance assistant (2019 onwards) earning $53,000 per annum.

14. The applicant declared annual living expenses of $20,800 per annum.

    Applicant’s Immigration History

15. Since her arrival in Australia on 08/03/2014 the applicant has made the following trips to and from Australia:

Trip	Departure from Australia	Arrival in Australia
Onshore
2	31/10/2016	02/12/2016
1	First Arrival	08/03/2014

1. The applicant has been in Australia for over six years and departed just once. This suggests that there is not a strong incentive to return to her home country at the end of her studies.

   Applicant’s Academic Record and Progress

Course	Status
Graduate Diploma of Management (Learning) (commenced on 28/09/2020 and will be concluded on 05/09/2021)	Studying
Advanced Diploma of Leadership and Management (commenced on 13/05/2019 and completed on 09/08/2020)	Finished
Diploma of Leadership and Management	Cancelled
Master of Business Administration (commenced on 13/03/2017 and completed on 31/07/2017)	Cancelled
Master of Business Administration (commenced on 05/12/2016 and completed on 13/03/2017)	Finished
Master of Business Administration	Cancelled
Master of Professional Accounting (commenced on 01/08/2016 and completed on 31/12/2016)	Finished
Master of Professional Accounting (commenced on 16/03/2015 and completed on 31/07/2016)	Finished
Master of Business Administration	Cancelled
Master of Business Administration	Cancelled
Postgraduate Qualifying Program – Business (commenced on 24/03/2014 and completed on 17/07/2014)	Finished
Master of Business Administration	Cancelled
Postgraduate Qualifying Program – Business	Cancelled
Master of Professional Accounting – Master of Business Administration	Cancelled
Postgraduate Qualifying Program – Business	Cancelled

1. At the time of making its decision the Tribunal had available to it the applicants academic record as set out in the Provider Registration International Student Management System (PRISMS) (as at 24/12/2020). It showed the courses undertaken by the applicant. Those courses successfully completed are shaded grey and the status described as “Finished”. Those courses not completed for any reason are marked as “Cancelled.”

2. The applicant has successfully completed several courses, including two at Masters level. There was a period of over two years from March 2017 to May 2019 when the applicant chose not to study (but she was not obliged to do so under the Temporary Graduate Visa conditions).

3. At the expiration of that visa, the applicant applied for another student visa. The course she now studying is at the Advanced Diploma level of study, which represents a regressive step academically from her previous qualification level.

4. Additionally, the specific course (Graduate Diploma of Leadership and Management) is similar to her Postgraduate Business qualification and Master of Business Administration qualifications already gained. The applicant has failed to demonstrate how this latest course would be of additional benefit to her academic progress.

5. In the time waiting for her hearing to be listed, the applicant has completed her Advanced Diploma of Leadership and Management course. She has then enrolled in yet another course – a Graduate Diploma of Management (Learning), which would extend her stay to 5 September 2021.  In her s359(2) response, she wrote, “After completion of my Advanced diploma course, I intend to return to Nepal and apply my learning and experiences…” She did not return and has instead enrolled in yet another course that extends her timeline in Australia to 5 September 2021.

6. Although the applicant has shown she is a high achieving student in her previous studies, these latest two courses do not appear to represent a serious advance on her previous qualifications.

7. Nevertheless, the fact remains that much time has elapsed between the date of the rejection of her application by the delegate and the hearing by the Tribunal of the application for  review and she has expended considerable funds in the meantime to further her education.

8. What is more is that the period left until the completion of her current course and her inevitable return to Nepal is only a matter of a few months and in view of the fact that the delay in considering this matter is of no fault of the applicant and she has expended considerable time and money the Tribunal considers that her application should be considered favourably.

   Value of Course to Applicant’s Future Prospects

9. The Tribunal cannot accept that her latest proposed course represents an advance on the applicant’s already significant educational achievements. The applicant stated she would like to return to Nepal and apply her learning to work at the management level of a reputed company there. Her plans and explanations were general and vague. She did not list an expected salary and had not done research into potential positions or salaries.

10. The Tribunal is not satisfied that the applicant has demonstrated the value of her proposed courses to her future. But the point remains that she has studied and has expended serious time and money and it would be unreasonable to now impose a rejection of her application. At an earlier point in time such rejection might have been appropriate.

11. The Tribunal therefore holds that the information she has provided regarding her circumstances in her home country, potential circumstances in Australia, the value of her proposed courses to her future, immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant (but clearly only to the end of her current course later this year).

    Other Relevant Matters

12. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant's genuine intention to temporarily stay in Australia and finds that there are no other relevant matters for consideration.

13. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

14. 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.

15. 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

16. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212. of Schedule 2 to the Regulations.

    Brian Camilleri
    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.