Rana (Migration)

[2021] AATA 183

Rana (Migration) [2021] AATA 183 (27 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dinesh Rana
Mrs Sanju Kunwar

CASE NUMBER:  1917538

HOME AFFAIRS REFERENCE(S):          BCC2019/1527821

MEMBER:Meredith Jackson

DATE:27 January 2021

PLACE OF DECISION:  Brisbane

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

·cl.500.212 of Schedule 2 to the Regulations.

Second named applicant to be reconsidered on the basis of the remit of the primary applicant.

Statement made on 27 January 2021 at 4:55pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – study difficulties and enrolment in lower-level vocational courses –general plans for business in home country – credible and enthusiastic evidence – second applicant already returned to home country – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 1 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 26 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant Dinesh Rana (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) because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia.

4.    The applicant appeared before the Tribunal on 27 January 2021 give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5.    The applicants were assisted in relation to the review by their registered migration agent.

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

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 whether the applicant is a genuine applicant for entry and stay as a student.

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.

1. 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.

Case summary

1. The applicants are Dinesh Rana, a 38 year-old citizen of Nepal and his spouse, Sanju Kunwar, a 37 year old citizen of Nepal. Ms Kunwar returned to her home country in February 2020. Married in 2013, the applicants arrived in Australia together in October 2014. Mr Rana held a Bachelor degree in education at the time of arrival. He enrolled in courses in English, a Bachelor of Business and Master of Business Administration at Southern Cross University. He claims tertiary study in Australia very difficult, and after several attempts he gave up and became depressed. He recovered, enrolled and qualified in further English studies, then undertook vocational-level courses in management and leadership. He sought the visa under review to complete a Diploma and Advanced Diploma of Leadership and Management. He is due to finish the second of those courses in September 2021. Mr Rana claims while he will not attain a degree in Australia, the qualifications he is working towards will be very valuable to him in Nepal. He claims he will complete his current course in September and return to his spouse in Nepal without delay.

Evidence considered by the Tribunal

1. The Tribunal has had regard to documents provided by the applicant including the delegate’s decision and a pre-hearing submission about his circumstances and intent. The Tribunal has also had regard to Department and Tribunal files.

Assessment of factors in Direction 69

Direction 69 – the applicant’s circumstances in Nepal

1. The applicant stated at the hearing that he qualified in education in Nepal but after marrying in 2013, he and his spouse came to Australia so he could get an MBA. In Nepal, his family consists of his father and grandmother, who are fairly self-sufficient; and on his wife’s side, his wife and his mother in law. He claims he needs to look after them. His other relatives are in Germany. When he came to Australia in 2014, he wanted to get the MBA, return home and work in a company in Nepal, then return to his home city and start a business. It did not happen, because he could not cope with Australian undergraduate study. He now intends to use his Advanced Diploma in Nepal to gain work, perhaps with his father, perhaps elsewhere, and support his wife’s cosmetics business when she re-establishes it after the pandemic passes. His wife agrees with this plan, he claims, and she has been successful in the past in the cosmetics industry. He states that together, they could earn up to AUD $5,000 a month.

2. The Tribunal has considered the applicant’s circumstances in Nepal. The applicant has not articulated a well thought through plan for his future, but he expresses such enthusiasm for the way he wants to apply his Australian qualifications, that he has convinced the Tribunal that he has a credible alternative. On balance, the Tribunal weighs these considerations somewhat in his favour.

Direction 69 – the applicant’s circumstances in Australia

1. The applicant claims he has no interest in working in Australia; he holds a part-time job in a restaurant in currently that pays his bills, but he has not researched his prospects here because he does not foresee a future in Australia. He claims he genuinely loves Australia, however has no interest in staying on because his wife and family are at home and he has a good future there. After the Tribunal raised in the hearing that he has not returned to Nepal since arriving in 2014, and this might cause some doubt about his intentions to return, he claimed he has learned “everything” here but is homesick now that he is away from his wife. So now, he claims, he is studying to complete his qualifications go home. The Tribunal questioned him about whether, after this current course ends, he would seek to stay on a fulfil his dream of a Bachelor of Business degree, or an MBA, or perhaps look for work in Australia. The applicant told the Tribunal he had ruled out enrolling in any further course after completion of his Advanced Diploma and ruled out staying on for any reason. He claims that with his wife having returned to Nepal, and not wishing to return to Australia, returning to Nepal is his only focus.

Direction 69 – value of the course to the applicant’s future

1. The Advanced Diploma of Leadership and Management that the applicant is due to complete on 24 September 2021, he claims will help him to manage businesses in Nepal, whether for his family or for an employer. He claims Australia has taught him a great deal about customer service, relationship building, and management. He stated: “I can survive anywhere in my country now, because Australia has taught me so much.” He claims that if he and his wife do a great job in Nepal, then with his qualifications, and her ability, they stand to earn up to $5000 per month. In his wife’s earlier cosmetics business in Nepal, he states, she earned nearly $1000 a month on her own. He has not to date approached anyone in Nepal for work, but he is confident that once qualified in Australia, he will be of considerable value to employers there if they give him an opportunity. His plan is to would work for a while for someone, then apply his skillset to his own business.

2. The Tribunal questioned whether he was progressing sufficiently in his course to guarantee that he will pass, given that in the past, he has had considerable difficulty completing. The applicant said he has accepted that he will not complete a Bachelor or Master degree in Australia, but that the Australian qualifications he is accruing are enough to get him a job “easily”. He argues he has against his personal odds, completed three management courses here and improved his English qualifications. The Tribunal asked whether there were any circumstances in which he would seek to study further in Australia or extend his stay beyond the completion of his remaining course, and the applicant responded: “No, no more study. I have already decided, this is the last. I have a family, I have to go, I’ve invested too much. I want to go back. My wife does not want to return to Australia, and I want to rejoin her.”

3. The Tribunal has considered the applicant’s statements in relation to his future. It difficult to draw from them a well-thought through plan for his future, but he does appear genuinely committed to leveraging what he has managed to achieve. It is fair to say he has doggedly, if only partly successfully, kept on studying and done so in a linear manner, towards a business and management future. The Tribunal, having weighed the value of the course to the applicant’s future, affords it some weight in the applicant’s favour.

Direction 69 – the applicant’s immigration history

1. The applicant’s immigration history, commencing in 2014, consists of him having held a subclass 573 (Student) visa and having applied for the subclass 500 (Student) visa under review. He currently holds a bridging visa. He has not applied for other visas and there is no information before the Tribunal that he has breached his visa conditions or intends not to comply with visa conditions in the future. What the Tribunal identified to be a long gap in attainments between 2016 and 2018, is explained, he states, by time spent struggling with failed enrolments. His wife, he claims has travelled extensively in Nepal and travelled to Australia but nowhere else. He has travelled only to Australia from Nepal. The Tribunal put to the applicant that he had been here a long time, since 2014, and had not returned to see the family members he claims to miss. The applicant responded that it has been a long and costly struggle to stay in study, and he is intent on returning as soon as this course ends. He does not intend to apply for other visas while here.

2. The Tribunal is mindful the applicant has less than nine months to go to complete his Advanced Diploma of Leadership and Management and has stated clearly that he will return home after he does so in September 2021. Having considered this firm commitment, and other aspects of the applicant’s immigration history, the Tribunal, on balance, weighs these circumstances in his favour.

Overall conclusion

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

2. On the basis of the above, the Tribunal is that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).The Tribunal has not identified any other relevant matters in the applicant’s case.

2. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

Second- named applicant

1. The second-named applicant has been offshore since February 2020 and her husband claims she is now resident in their home country. Her application is remitted to the department to be reconsidered in the context of the remit of the primary applicant.

2. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

   Second named applicant to be reconsidered on the basis of the remit of the primary applicant.

Meredith Jackson
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).

1. 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.

2. 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.

3. 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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.