Purja Rontija (Migration)

Purja Rontija (Migration) [2021] AATA 5243 (14 December 2021)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Bina Kumari Purja Rontija
Mr Hari Prasad Rontija
CASE NUMBER:  2002023
HOME AFFAIRS REFERENCE(S):          BCC2019/3765328
MEMBER:Warren Stooke AM
DATE OF DECISION:  14 December 2021
DATE CORRIGENDUM
SIGNED:17 February 2022
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

Paragraph 6 should read “For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.”
Warren Stooke AM
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Bina Kumari Purja Rontija
Mr Hari Prasad Rontija
CASE NUMBER:  2002023
HOME AFFAIRS REFERENCE(S):          BCC2019/3765328
MEMBER:Warren Stooke AM
DATE:14 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 14 December 2021 at 8:57am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – arrived on tourist visa – applicant’s business and husband’s land in home country – value of course to applicant’s future – lack of income relative to living expenses – member of family unit – decision under review affirmed
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 30 July 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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’s finding was that the applicant is not a genuine temporary entrant and that the applicant is seeking to establish and maintain de facto residence in Australia, rather than due to a genuine interest in improving their educational skills. The delegate also found that the applicant’s deliberate intentions to circumvent the temporary visa program do not reflect that of a genuine applicant and are indicative of someone using the Student visa program as a means of maintaining residence in Australia.
The applicants appeared before the Tribunal on 6 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sanni Shahi. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood that the reason for the refusal to grant the visa was because she had a business in Nepal and why she was staying here (in Australia).
For the following reasons, the Tribunal has concluded that the matter under review should be remitted for further consideration.
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 applicant is a 36 year old from Nepal, who arrived in Australia with her spouse on 19 May 2019 as holders of Tourist (Class FA subclass 600) visas that were valid from March 2019 to August 2019, which she stated was due to expire and she stated that she did not return to Nepal, as Covid had started.
The applicant stated that she enrolled in an English language course and that when she left Nepal she had no intention to study but had difficulty with English and then wanted to study.
The applicant provided evidence that she has current confirmations of enrolment for the following courses:
a.Certificate IV in Business Administration from 12 April 2021 to 10 April 2022;
b.Diploma of Business Administration from 11 April 2022 to 9 April 2023;
c.Advanced Diploma of Business Administration from 10 April 2023 to 7 April 2024.
The applicant stated in a s359(2) response to a request for information from the Tribunal that she has engaged in the following courses of study since arriving in Australia:
a.Australian Ideal College - General English from 05/2019 to 08/2019;
b.Ashley English Language Institute - General English from 08/2019 to 06/2020;
c.Ashley English Language Institute - General English from 06/2020 to 03/2021;
d.Sydney Metropolitan International College - Certificate IV In Business Administration from 04/2021 to 04/2022.
The applicant stated that she was studying business because as she was doing business in Nepal that she enrolled in English and business courses.
The Tribunal asked the applicant, who was operating her business in Nepal whilst she is in Australia with her husband and she responded that her cousin was looking after the business at the moment.
The applicant provided the Tribunal with evidence of a certificate of business registration and that her husband is the owner of land to the value of $100,000.
The applicant provided evidence of health insurance with Bupa from 1 July 2021 to 31 July 2024.
The applicant was granted a Bridging Visa A on 31 July 2019 with an 8101 No work condition and no travel.
The applicant provided information that she has two unaccompanied female children, who were born on 17 September 2006 and 15 February 2011, respectively.
The applicant responded to a question from the Tribunal, as to why she was studying in Australia and she stated at hearing: “Compared to other countries, I really liked this country and study as well”.
The applicant stated that she will return to her home country when she finishes study.
The applicant provided the Tribunal in response to the s359(2) request for information a response, as follows:
“The Australian education system is exceptional not even comparable with any country of the world.
I learned English for two years and found very good so during the pandemic time I wanted to utilize and gain some more knowledge so we decided to stay here and complete my business course”.
The applicant also provided the Department with the following information in the application for the visa:
“Our plan is to finish study and go back to expand our business as now my English is good and I am learning business which is helpful for my future.
After completion of my course I will go back to Nepal and help my husband in his business and also can help my children in their studies.”
The applicant stated that she has not returned to Nepal since arriving because of Covid.
The applicant stated that she was living with her husband and her husband’s brother and wife, who are Australian citizens.
The applicant stated that her husband is not working or studying and is helping with the house.
The applicant stated that she is living off savings from the business (in Nepal) and her husbad’s brother and wife are supporting them.
The applicant stated that her two children in Nepal are being looked after by her mother-in-law and sisters.
The Tribunal asked the applicant, if it was normal to leave children for 4 years and the applicant responded: “Yes, not normal but will return”.
The Tribunal asked why the applicant’s husband had not returned to Nepal and she responded that she and her husband have not been separated after 19 years.
The Tribunal asked the applicant if that was more important than their children and the applicant responded that her daughter was to do an English course.
The applicant provided the Tribunal with evidence of registration of a retail business in Nepal for 2018.
The Tribunal asked the applicant if she expected any difficulty in assimilating back into Nepalese society and responded: “No”.
The Tribunal asked the applicant if it was the applicant’s intention to seek permanent residency and the applicant responded: “No”.
The Tribunal asked the applicant if there was any reason that would preclude the applicant from returning to Nepal and the applicant responded: “No. Once I finish my study and will have full knowledge about my business”.
The Tribunal asked the applicant why her husband was not studying and she responded: “Maybe he will study later.”
Witness Evidence – Mr Sanni Shahi
The witness stated that it was better to sort out the visa and finish studies and go back to Nepal.
The witness stated that the business was in a tourist area and can expand.
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.
Whilst the Tribunal notes that the applicant first arrived in Australia on a Temporary Visitor Visa 600 in May 2019 and commenced English studies, the Tribunal acknowledges that it is not prohibited under the legislation to apply for a Student 500 Visa whilst onshore, on a Visitor Visa. However, the applicant stated in evidence that she remained in Australia to study after the outbreak of Covid. The Tribunal notes that the applicant applied for the visa in July 2019 and the Covid pandemic first emerged late January 2020. Further, the applicant’s intention to remain in Australia beyond the term of the Temporary Visitor 600 Visa, appears to have been premeditated for purposes other than temporary residency, as the grant of a visa for a total of 5 years without a return to home since arrival, must have been planned, particularly, as her children were left with family on the most likely scenario that the Student 500 visa was granted at the time of application, which may have facilitated the children later joining the parents in Australia.
Further, the Tribunal is satisfied that the applicant has made academic progress in her chosen courses of study, since arriving in Australia and being granted a Bridging Visa A. In this regard, the applicant has completed the following courses of study:
a.Australian Ideal College - General English from 05/2019 to 08/2019 - completed;
b.Ashley English Language Institute - General English from 08/2019 to 06/2020 – 42 weeks - completed;
c.Ashley English Language Institute - General English from 06/2020 to 03/2021 – 40 weeks of Pre-Elementary – completed;
The applicant provided the Tribunal with evidence that she has a confirmation of enrolment to undertake the following courses of study:
a.Certificate IV in Business Administration from 12 April 2021 to 10 April 2022;
b.Diploma of Business Administration from 11 April 2022 to 9 April 2023;
c.Advanced Diploma of Business Administration from 10 April 2023 to 7 April 2024.
In the absence of detailed information concerning the value of business courses to the applicant’s future, the Tribunal has considered that the applicant has not provided an adequate reason as to why she has chosen to study business courses other than that she and her husband have a business in Nepal, which is being operated by a cousin. The Tribunal gives weight to the lack of apparent value of the courses to the applicant’s future, which indicates that she does not genuinely intend to stay in Australia temporarily and is using the student visa program as a means of maintaining lifestyle and residency in Australia.
The Tribunal finds that the applicant has failed to give strong reasons to satisfy the Tribunal that the proposed study plan will assist the applicant in obtaining a specific employment opportunity or how completion of the courses studied will improve the applicant’s business interests in her home country. In the absence of detailed submissions on this aspect, together with the absence of advice of a specific business plan, the Tribunal finds that the applicant is intending to use the current stream of visa to maintain lifestyle and residency.
Further, the applicant has provided the Tribunal with only limited evidence concerning ownership of land with an estimated value of $100,000 and a registered business in Nepal and has not elaborated on the revenue of the business or as to how this business would be improved by further study of courses in Business. The Tribunal seriously doubts that the proposed courses of study would contribute to the financial or business management of the applicant’s business.
Whilst the applicant has stated that she maintains contact with her home country through electronic media, it is apparent that the presence of several members of her immediate family in Australia presents a greater incentive to stay in Australia rather than to return to Nepal, despite her 12 and 15 year old girls, maintaining residence in Nepal. In this regard, the Tribunal was advised that the applicant’s husband is not engaged in work or study in Australia and occupies himself with domestic duties at his brother and sister-in-law’s home, where they live. It was stated that they had not separated from each other for 19 years. The Tribunal is not satisfied that the applicant has significant family ties in the designated home country of Nepal, despite two daughters living with family, relative to the motivation to remain with family in Australia to maintain lifestyle and residency in Australia.
The Tribunal was provided with evidence that the expenditure on living expenses is $24,332 per annum. The Tribunal questions, how the cost of $24,332 per annum in living expenses, as provided in evidence, and the lack of income relative to expenses, to be sustainable into the future without reliance on an income. As such, there is no evidence before the Tribunal that the applicant or her spouse has any current earnings from employment or evidentiary documentation for the cash-flow of their business in Nepal. The Tribunal finds that the applicant has also not provided adequate evidence of a most recent bank account or evidence of access to funds that can support continuing residency in Australia.
Further, the Tribunal does not accept that the separation of parents from young children for a period of up to five years is genuinely based on education courses in the VET sector that could alternatively be studied in Nepal without the cost and dislocation to the family.
The Tribunal has considered the applicant’s circumstances in relation to Direction 69 and is satisfied that on the weight of evidence that there is no apparent reason that would preclude the applicant from returning to her home country based upon military service obligations, political stability or any other factor.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including immigration and study history, circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
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).
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.
On the basis that the applicant has not satisfied the criteria for the grant of a Student subclass 500 visa, it follows that the secondary applicant is not a member of a family unit that has satisfied the required criteria.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
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.

[2021] AATA 5243

14 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies