Rai (Migration)

[2021] AATA 2315

Rai (Migration) [2021] AATA 2315 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sal Bahadur Rai

CASE NUMBER:  1912224

HOME AFFAIRS REFERENCE(S):          BCC2019/1174950

MEMBER:Elizabeth Tueno

DATE:4 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 04 May 2021 at 11:59am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – not a genuine temporary entrant –an economic incentive to remain in Australia –personal ties in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
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 7 May 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 8 March 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). The delegate was not satisfied that the applicant met the genuine temporary entrant requirement for the grant of a student visa.

4. The applicant appeared before the Tribunal on 4 March 2021 by telephone to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, Mr Janga Bahadur Rai.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.  The applicant was assisted in relation to the review by their registered migration agent.

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

   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 intends genuinely to stay in Australia temporarily.

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.

10. The Tribunal has had regard to the oral evidence given and submissions made at the hearing, the documents submitted to the Tribunal by the applicant as well as to the contents of the Department’s file.

11. The applicant is a 41 year old man from Nepal.  He arrived in Australia in 2018 on a visitor visa, which expired in March 2019.  Shortly before this visitor visa expired, he applied for this student visa in order to undertake a general English course.  He has now completed that English course, which commenced on 1 April 2019 and ended on 27 March 2020. He provided evidence to the Tribunal of enrolment in a further English course, commencing 25 May 2020 and ending on 8 November 2020, as well as a Certificate III and IV in Business, the latter ending on 14 December 2022.  His enrolment in these additional courses was confirmed on 25 May 2020 and was provided to the Tribunal on 5 June 2020.

12. However, on 29 January 2021, the applicant provided a new set of confirmation of enrolments in the following courses:

    ·     General English (completed on 8 November 2020);

    ·     Certificate IV in Commercial Cookery – commencing on 11 January 2021 and ending on 8 July 2022; and

    ·     Diploma of Hospitality Management – commencing on 11 July 2022 and ending on 6 January 2023 (“the proposed courses”)

13. These courses mean that the time he requires to stay in Australia will have been extended from 27 March 2020 to 14 December 2022 and now 6 January 2023. 

14. The applicant told the Tribunal that there are cooking schools in Nepal, but they are not as good as the ones in Australia.  In his written statement to the Tribunal, the applicant said that he never intended on studying here but once he arrived in Australia he was inspired by his brother, who works as a head chef.  He said that the courses in Nepal are theoretical and not practical, with local graduates unable to find work .  He also claimed that there are limited placements at education providers, old syllabus and a lack of practical training.  He wants to learn in an English speaking environment and chose Australia because his brother lives here. 

15. The Tribunal is not persuaded that the applicant has sound reasons for not studying the proposed courses in his home country.  First, the Tribunal is not convinced with the applicant’s explanation that he never intended on studying in Australia until he saw his brother working as a head chef.  This explanation is not consistent with the courses the applicant has enrolled in given that he first enrolled in English, and then business courses.  It was not until earlier this year (over two years after he arrived in Australia), that he decided to study cooking and hospitality management.  Second, the Tribunal is not convinced that the applicant has genuinely explored similar courses available in his home country.  He has cited generalised reasons for not studying in Nepal (theoretical versus practical, lack of jobs upon graduation etc) without providing any sort of objective evidence that would support his assertions. 

16. In relation to the applicant’s personal circumstances in his home country, he told the Department that he had been running his own business there for the 5 years but did not explain the nature of the business.  In his written statement to the Tribunal, he again referred to running a “family” business with his wife but provided no more clarity of the what sort of business it is.  In his application form, he disclosed that he is married and has a daughter aged 23 who both live in Nepal. His father also resides in Nepal, however he has a brother who is now a permanent residence in Australia.  The applicant told the Tribunal that he has returned to Nepal 2 or 3 times since arriving in Australia, however he did not provide any evidence of leaving Australia since 2018.  The Tribunal accepts that having family members in Nepal does mean the applicant has personal ties to that country.  However, it is difficult to conclude that these ties would be a significant incentive for him to return, when considering he arrived in Australia for a short visit and has now been living here for close to two and a half years. 

17. With respect to his economic circumstances, the applicant has provided no evidence about assets or property the he owns.  He gave evidence that he owns a family run tea factory in Nepal from which he earns around NPR 1,200,000 per annum (12 lakhs) but did not provide to either the Department or Tribunal any document which would confirm this.  He told the Tribunal that the business is still be operated by his wife and his business partners, which demonstrates that the business is capable of running in the absence of the applicant for a number of years.  The Tribunal is not persuaded that the applicant’s economic circumstances would be a strong incentive for him to return to Nepal upon the completion of his studies in Australia. 

18. There is not evidence that suggests the applicant is using the student visa to avoid military service commitments or because of any political or civil unrest in his home country.

19. The Tribunal has also considered the applicant’s potential circumstances in Australia.  He came here to visit his brother and his family here and to help them with their newborn son.  The applicant lives with his brother and his brother’s wife and son.  The Tribunal considers it significant that the applicant’s brother came to Australia as a student himself.  In his evidence, the applicant’s brother said that he had originally intended on returning to Nepal but secured a sponsored job and he is now an Australian permanent resident.  He has been working in Australia for the last 12 years.  He said that his brother does not want to stay in Australia, instead plans on returning to Nepal to expand the family business.  However, the Tribunal is concerned that the applicant may, in fact, be wanting to follow in his brother’s footsteps.  The applicant himself denied enrolling in the cooking and hospitality courses as they would allow him to stay in Australia longer.  He said that he wants to return to Nepal after his studies.  He also said that he does not plan to bring his wife and daughter to Australia.  However, in his written statement to the Tribunal, he said that it would cost AUS $7360 for his wife’s living expenses in Australia and that his brother “has sufficient funds to sponsor us…” (emphasis added).  It is clear from this statement that the applicant has considered bringing his wife to Australia to join him here.  For this reason, the Tribunal does not accept the evidence he gave at the hearing that he does not intend on bringing his wife and daughter to Australia.

20. The Tribunal considers that the applicant has strong ties to Australia, namely his brother, sister-in-law and their child and that this does represent a strong incentive to remain here.  If he were to be granted a student visa, the Tribunal considers it highly likely that the applicant would have his wife and daughter join him here, which would mean his only direct relative in Nepal would be his father. 

21. Furthermore, the Tribunal considers that despite the applicant’s claim that he became interested in studying cooking, his original plans were to simply study English and later on to study English as well as Business courses.  The Tribunal is concerned that he has changed to cooking and hospitality studies as this is the path his brother took that has allowed him to remain in Australia.  The Tribunal considers it likely that the applicant is using the student visa to maintain ongoing residence in Australia and that in doing so, he is attempting to circumvent the intentions of the migration program. 

22. The Tribunal has also considered the value of the proposed courses to the applicant’s future.  His highest level of education was a high school and secondary school in Nepal.  He has not previously studied cooking or hospitality courses.  He has not studied any vocational or tertiary course prior to coming to Australia.  Accordingly, the Tribunal considers that the proposed courses are consistent with the applicant’s current level of education.

23. In relation to his plans for the future, the applicant told the Tribunal at the hearing that after coming to Australia and travelling around, seeing the teas and foods, he has decided he wants to grow his business and open a restaurant  as this would be a good “cross point” for him and his business.  The Tribunal also takes into account the explanation he gave in his written statement:

    Once I complete my education in Australia, I will return back to my home country and start working in the hospitality field for the hotel industry… I can easily get a job in this field with the cookery and management skills I will learn during my course in Australia.  I have already completed my English course successfully which is an added benefit for my career.  I even have a business in Nepal and through this I gained good business skills which I can apply during my employment.  As I am shifting to the Hospitality field, my wife will take care of our business further when we return back to Nepal after my course completion. 

    …

    By studying in Australia, I can earn up to 10 lakhs Nepalese Rupees (around 11,000 AUD) per year and if I study in Nepal, I would earn less than half of this salary.  Therefore, with all these high employment opportunities and with my own business back in Nepal, I do not have to even think about working in Australia after my studies or settle in Australia. 

24. It is worth pointing out that when the applicant originally applied for this student visa, he told the Department as follows:

    I have been running a business in Nepal for the last 5 years. My business is mostly related to Nepali customers only as I neither I ever felt the need, nor I ever could see the possibility of expanding my business to a broader audience. After staying in Australia, now I can see that if I have a good command of English, I may have an opportunity to expand my customer base to include the tourists who come to Nepal, export the goods to India and also collaborate with the merchants in Australia and import or export the goods. I can also see that I can utilize my time here not just for acquiring the language skills but also for networking with people who could be interested in my venture.

    Therefore, I believe that the first step towards this will be learning English. Once I complete my education, I will return to my country and start working towards these possibilities. I am certain that this investment of time, effort and money will only augment the stature and the scope of my business and help me grow as a more mature and versatile entrepreneurs. Not only that returning with an Australian education degree will increase my credibility and help me secure the loan as it will reflect my ability to plan for my business considering sustainability and profitability.

25. There was no explanation provided by the applicant as to why he enrolled in Certificates III and IV in Business and never even commenced them. 

26. The Tribunal is concerned that the applicant’s interests have changed over the last couple of years.  He originally wanted to study English in order to expand his business.  He then told the Tribunal in writing that he wanted to find work in the hotel industry in Nepal and that his wife would continue to run the business.  Even with Australian qualifications from the proposed courses, he would be earning less per annum in Nepal that he was earning running his tea factory business.  He then told the Tribunal at the hearing that he now intends to expand his business by adding a restaurant to it.  He did not provide any evidence about how this would increase the remuneration he would be earning in Nepal. 

27. The Tribunal is concerned that the applicant’s plans have changed with each change of course of has been enrolled in.  That his not how it should be.  Furthermore, as noted above, the Tribunal is concerned that having enrolled in the proposed courses, the applicant is wanting to follow his brother’s path to permanent residency here, despite his assertion that he wants to return to Nepal.  These matters raise concern for the Tribunal that the proposed courses will not in fact assist the applicant in finding employment or improve his employment prospects in Nepal, that they proposed courses are not relevant to his previous employment running a tea factory and have are only relevant to his future plans if they remain as he told the Tribunal at the hearing rather than as stated in his written statement dated 28 January 2021.  Furthermore, the Tribunal considers that the applicant will be earning less using qualifications from the proposed courses than what he was previously earning before coming to Australia. 

28. Lastly, the Tribunal accepts that the applicant’s immigration history does not contain anything adverse.  There is no evidence that he has ever been refused a visa or had a visa cancelled by Australia or by another country, that he has ever breached the conditions of his Australian visas.  He also appears to understand the conditions that would be attached to a student visa. 

29. There were no other relevant matters raised by the applicant, his brother or his migration agent for consideration.

30. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant does not meet cl.500.212(a).

31. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

32. 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

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

    Elizabeth Tueno
    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.