Rai (Migration) [2022] AATA 1833 (8 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Prabin Rai
REPRESENTATIVE: Ms Pooja Rawal (MARN: 2117645)
CASE NUMBER: 2115320
HOME AFFAIRS REFERENCE(S): BCC2020/296751
MEMBER:T. Quinn
DATE:8 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·Clause 500.212 (a) of Schedule 2 to the Regulations.
Statement made on 08 June 2022 at 11:32am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – updated and further information provided out of time – visa, work and study history – arrived on working visa – COVID-19 restrictions, loss of employment and application for student visa – one course completed before enrolling in lower-level course in different subject area – reasonable change to study and career pathway – continuing study and satisfactory academic progress – COVID-related delays in work placements – value of course to future business plans – sibling in Australia and parents, friends, land and house in home country – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347, 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)CASES
Baker v MIAC [2012] FCAFC 145
Chen v MIBP [2017] FCA 46
Cockrell v MIAC (2008) 171 FCR 345
FKP18 v MIBP [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Jagroop v MIBP (2014) 225 FCR 482
Kaur v MHA [2019] FCCA 1372
Kaur v MIBP [2014] FCA 915
Khan v Minister for Immigration [2019] FCCA 565
Manna v MIAC [2001] FMCA 28
MIAC v Li [2013] HCA 18
MIAC v Obele (2010) 119 ALD 358
MIBP v Singh [2014] FCAFC 1
Tshering v MHA [2019] FCCA 2667
Williams v MIBP (2014) 226 FCR 112STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
On 4 February 2020, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 12 October 2021, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application
On 28 October 2021, the applicant applied to this…
Continue reading Rai (Migration)
Sign in free to access the full text
Details
- AGLC
- Rai (Migration) [2022] AATA 1833
- Case
- [2022] AATA 1833
- Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the case of an applicant for a Student (Temporary) (Class TU) visa, Subclass 500. The applicant, a Nepalese citizen, had arrived in Australia on a Temporary Skill Shortage visa (Subclass 482) and sought to transition to a student visa. The primary dispute concerned whether the applicant met the genuine temporary entrant (GTE) criterion, a requirement for the student visa.
The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily, as mandated by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This assessment involved considering the applicant's circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958. The court also had to consider the applicant's enrolment in a course of study, as required by clause 500.211.
The Tribunal reasoned that the applicant had provided significant evidence of being a genuine student, including completing a Diploma of Leadership and Management while awaiting a decision on his visa application, despite a change in his intended study pathway. The court acknowledged the impact of COVID-19 on the applicant's employment and the hospitality industry, which contributed to his decision to change his course of study to a Certificate IV in Disability and a Diploma of Community Service. The Tribunal found that the applicant's circumstances, including his ties to his home country such as land, house, and family, supported his intention to return. The Tribunal concluded that the applicant met the genuine temporary entrant criterion.
Consequently, the Tribunal remitted the application for a Subclass 500 (Student) visa to the Minister for reconsideration, with a direction that the applicant satisfied clause 500.212(a) of Schedule 2 to the Regulations.
The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily, as mandated by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This assessment involved considering the applicant's circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958. The court also had to consider the applicant's enrolment in a course of study, as required by clause 500.211.
The Tribunal reasoned that the applicant had provided significant evidence of being a genuine student, including completing a Diploma of Leadership and Management while awaiting a decision on his visa application, despite a change in his intended study pathway. The court acknowledged the impact of COVID-19 on the applicant's employment and the hospitality industry, which contributed to his decision to change his course of study to a Certificate IV in Disability and a Diploma of Community Service. The Tribunal found that the applicant's circumstances, including his ties to his home country such as land, house, and family, supported his intention to return. The Tribunal concluded that the applicant met the genuine temporary entrant criterion.
Consequently, the Tribunal remitted the application for a Subclass 500 (Student) visa to the Minister for reconsideration, with a direction that the applicant satisfied clause 500.212(a) of Schedule 2 to the Regulations.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Direction is a lawful direction of the Minister.[9] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[10] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[11] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[12] [9] In accordance with section 499 of the Act. [10]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].[11]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).[12]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a 34-year-old male Nepalese citizen who first arrived in Australia on 20 May 2019 on a Temporary Skill Shortage Visa Subclass 482 visa (‘the 482 visa’) and has remained onshore since that time.[13][13]See delegate’s decision and the applicant’s response to the s359(2) letter. The applicant was born in Singapore, completed his schooling in Nepal and India and then worked and was trained as a sous chef from May 2013-May 2016 in Dubai.[14] During his time in Dubai he earned AUD11,000 equivalent per annum.[15] He then returned to Nepal and, prior to coming to Australia, the applicant worked as Head chef from June 2016-April 2018 and then as a sous chef from April 2018 until his arrival earning AUD4,800 equivalent per annum at both workplaces in Nepal.[16] [14]See the applicant’s representative’s submissions dated 10 March 2022 filed 11 March 2022 (‘the Rep Submissions’). [15]See the questionnaire. [16]See the applicant’s response to the s359(2) letter. The applicant’s original application to the Department was made well in advance of the 482 visa expiring and he explains in the Rep Submissions that the restaurant he was working at as part of the 482 visa closed down. It is common knowledge that the COVID19 Pandemic had a devastating impact on the hospitality industry. The applicant originally sought to undertake a Diploma and Advanced Diploma of Leadership and Management.[17] However, prior to the delegate’s decision, the applicant filed new confirmations and enrolment and a new genuine temporary entrant statement indicating he wished to change his study and career pathway to undertake a Certificate IV in Disability and a Diploma of Community Service from April 2021-April 2022 and April 2022-April 2024 respectively.[18] Unfortunately, in those submissions to the Department the applicant did not include a critical document: a copy of his Certificate of completion for his Diploma of Leadership and Management which he undertook from February 2020-May 2021 and which he has provided corroborating documents from his course provider for to the Tribunal. This evidence is significant as it indicates the applicant continued to study whilst awaiting the outcome of his application to the Department and in fact completed the first of his proposed courses. This is strong evidence he is a genuine student.[17]See delegate’s decision and the applicant’s response to the s359(2) letter. [18]Ibid.
Decision
Reasons for decision
Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, I am satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations and the applicant’s application for the visa must be remitted to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.DECISION The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:·Clause 500.212(a) of Schedule 2 to the Regulations.MemberT. QuinnAttachment – Clauses 500.211 and 500.212 of Schedule 2 of the Regulations Enrolment (clause 500.211)·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[34] [34]Clause 500.211(a) of Schedule 2 to the Regulations.·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[35][35]Regulation 1.03 of the Regulations.·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[36] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[37] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.[36]Section 10 of the ESOS Act.[37]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).Genuine Temporary EntrantClause 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.Attachment – Direction No.69DIRECTION 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 2016Peter DuttonMinister for Immigration and Border ProtectionNote: 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 - PreliminaryName of DirectionThis 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.CommencementThis Direction commences on 1 July 2016.InterpretationAct 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) visaStudent Guardian visa means a Subclass 590 (Student Guardian) visa.ApplicationThis 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.PreambleThe 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; andb.the applicant’s immigration history; andc.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; andd.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 temporarilyPart 2 of Direction No. 69 - DirectionsAssessing the genuine temporary entrant criterion1.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; andb.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; andd.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 circumstances6.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 country9.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; ande.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 Australia11.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; ande.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 future12.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; andb.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; andc.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 history13.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; andii.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; andiv.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-complianceIf the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant15.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 matters16.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.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.