Rajbanshi (Migration)

[2021] AATA 2489

Rajbanshi (Migration) [2021] AATA 2489 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yamuna Rajbanshi
Mr Karna Bahadur Rajbanshi

CASE NUMBER:  1921959

HOME AFFAIRS REFERENCE(S):          BCC2019/2330473

MEMBER:Brian Camilleri

DATE:  17 June 2021

PLACE OF DECISION:  Sydney

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

DECISION:The Tribunal affirms the decision not to grant the second named applicant MR KARNA BAHADUR RAJBANSHI a Student (Temporary) (Class TU) visa.

Statement made on 17 June 2021 at 7:05pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applicant departed Australia – Direction No.69 – circumstances in home country – circumstances in Australia – immigration history – academic record and progress – value of course to future prospects – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

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 23 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2.     The applicants applied for the visas on 30 April 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.

3. 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 (the Regulations) and the applicant did not comply with the genuine temporary entrant criterion.

4.     On 28 December 2020, the applicants were sent a letter by the Tribunal, via their registered migration agent, inviting them to attend a hearing at 9.30am (NSW time) on 9 February 2021 to give evidence and present arguments in support of their application for review. On the day of the hearing, the applicants were phoned by the Tribunal before the scheduled time on the telephone number provided to the Tribunal by the applicant to provide access to the hearing. The applicants failed to answer or respond to any phone calls of the Registry. No emails were received prior to or on the hearing date, either from the applicants or their registered agent explaining their intention not to attend the hearing they had requested.

5.     The Tribunal notes that according to Movement Details of the first named applicant’s Immigration Record the applicant had departed Australia on 18 February 2020. There is no record of her returning. She has not evinced any intention to return but she did not withdraw her application for review and therefore the Tribunal has determined the application for review on the papers, using the information available provided previously to it by the applicants and their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)

8. 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?

9. 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.

10.      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

11.      The first named applicant is married with no dependents. Her spouse, Karna Bahadur, is the second named applicant. The first named applicant is twenty-eight years of age. Her parents and two sisters live in her home country of Nepal. She listed the family residential property as an asset valued at $350,000. Prior to arriving in Australia, she studied a four-year Bachelor of Education degree in Nepal, graduating in 2016. She did not list any employment roles in Nepal in her (undated) written response to the Tribunal.

Applicant’s circumstances in Australia

12.      The applicant first arrived in Australia on 23 May 2017 on a Temporary Graduate (VC-485) Visa (valid to 30 September 2017). On 30 November 2017 she was granted a second Student (Subclass 500) Visa. On 30 April 2019, she applied for a third Student (Subclass 500) Visa. At the time she was enrolled in: (a) Certificate IV in Business; (b) Diploma of Leadership and Management. Her application was rejected on 23 July 2019.

13.      The applicant listed annual living expenses as $28,200. She stated her employment role (from June 2018 to February 2020 as an assistant in nursing. She omitted information about her income.

Applicant’s Immigration and Travel History

14.      The applicant arrived on 23 May 2017. According to the Immigration record provided to the Tribunal the applicant has made the following trips to and from Australia:

Trip	Departure from Australia	Arrival in Australia
1	18/02/2020	Offshore
First Arrival	23/05/2017

15.      There is nothing exceptional in the applicant’s movement record other than that she departed Australia on 18 February 2020 and has not returned.

Applicant’s Academic Record and Progress

16.      At the time of making its decision the Tribunal had available it the applicant’s academic record as set out in the Provider Registration International Student Management System (PRISMS) (as at (13/01/2021). It showed the courses undertaken by the applicant. Those courses successfully completed have their status described as “Finished” (shaded in grey). Courses not completed are described as “Cancelled”.

Course	Status
Certificate IV in Business, (13/05/2019 - 10/05/2020)	Finished
Diploma of Leadership and Management (Proposed Course Start Date: 11/05/2020 - Proposed Course End Date: 09/05/2021)	Cancelled

17.      The applicant’s PRISMS record (although having left Australia on 18 February 2020) marked her course as “Finished”. It is not necessary for the Tribunal to speculate on how this course was marked as “Finished” notwithstanding the applicant had left Australia almost 3 months prior to the scheduled end date of the course. The applicant’s second proposed course (which she did not undertake as she had already left Australia) is listed in the PRISMS record as “Cancelled”. No current CoE was provided to the Tribunal in relation to this course.

18.      The Tribunal finds that the applicant appears to have abandoned any intention to study and stay in Australia temporarily for that purpose.

Value of Course to Applicant’s Future Prospects

19.      The applicant studied a Bachelor of Education in her home country. In Australia, she worked as an assistant in nursing, an occupation unrelated to her previous studies. Her proposed courses (Business, Leadership and Management) (never commenced) appear unrelated to a career in nursing.

20.      The applicant claimed she planned to work in a managerial position in aged care services on return to Nepal. She expected to earn 70,000RS per month (equivalent to $9,500 AUD per annum).

21.       The Tribunal does not accept the applicant is/was a genuine temporary entrant. She has not provided any explanation for her frequently changing study plans. In particular it is not apparent in what way and to what extent her career and income earning prospects would be improved. She is not qualified as a nurse, nor has she pursued any courses related to nursing or aged care. The Tribunal accepts that a management and leadership course could be a useful in some contexts in addition to her current work experience. However, the applicant’s course has been cancelled and she has not provided the Tribunal with a current CoE.

22.      It appears the applicant has applied for a Student visa for the primary purpose of securing an extension of his stay in Australia rather than due to a genuine interest in the subject matter of her studies and academic progression. In any event the applicant has not/had not demonstrated a clear and substantial improvement that would arise from the proposed study. The Tribunal concludes that having left the country without withdrawing her application for review of the delegate’s decision to reject her visa application that she probably lodged the application for review for the purpose of extending her stay and to be able to leave Australia at a point in time of her convenience and without any consideration of the authenticity or otherwise of her study proposal.

23.      The information provided regarding the applicant’s circumstances in her home country, potential circumstances in Australia, the value of her proposed courses to her future, her immigration history and other relevant matters does not demonstrate that the applicant is a genuine temporary entrant.

Other Relevant Matters

24.      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.

25.      On the basis of the above, the Tribunal is not satisfied that the applicant intends (or intended) genuinely to stay and study in Australia temporarily. Accordingly, the applicant does not meet the requirements of cl.500.212(a).

26.      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

27.      The Tribunal affirms the decision not to grant the first named applicant MRS YAMUNA RAJBANSHI a Student (Temporary) (Class TU) visa.

MR KARNA BAHADUR RAJBANSH

SECOND NAMED APPLICANT - I

28.      The secondary applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa.

Information and evidence considered

29. The delegate made a decision under section 65 of the Migration Act 1958. The Tribunal has considered the following: (a) relevant legislation contained in the Migration Act and Migration Regulations 1994; (b) relevant policy and procedural information; (c) documents and information provided by the applicant(s); the decision under review.

Findings

30.      On the basis of all the information available, including the documents and information the applicant provided, the Tribunal finds that the criteria for the grant of a Student visa are not met by the applicant.

Reasons

31. A valid application for a Student visa has been made by the applicant. A visa cannot be granted unless the relevant criteria set out in the Migration Act and the Migration Regulations are satisfied. The Tribunal is not satisfied that the requirements of clause 500.311 in Schedule 2 of the Migration Regulations are satisfied. This clause provides that:

500.311

The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

a)   the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

(i)   the primary person’s application under sub regulation 2.07AF (3); or

(ii)information provided in relation to the primary person’s application under sub regulation 2.07AF (4); or

(b)    the applicant became a member of the family unit of the primary person:

(iii)    after the grant of the student visa to the primary person; and

(iv)    before the application was made.

1. As the first named applicant Mrs Yamuna Rajbanshi was found not to meet the requirements of cl.500.212(a), the second named applicant Karna Bahadur Rajbanshi does not satisfy the requirements of cl.500.311. As the applicant Karna Bahadur Rajbanshi has been found not to satisfy the requirements of cl.500.311 no further review with regard to this applicant has been undertaken.

   DECISION:

1. As clause 500.311 is not met by the second named applicant, the Tribunal finds that the criteria for the grant of Student visa are not met by the applicant. The Tribunal affirms the decisions not to grant the second named applicant MR KARNA BAHADUR RAJBANSHI a Student (Temporary) (Class TU) visa.

Assessment against the criteria of other subclasses in class TU

1. As the application was not made on Form 157G (Application for a Student Guardian visa), the Tribunal has not reviewed the decision against the subclass 590 Student Guardian visa criteria in this visa class.

   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.