Regmee (Migration)

[2020] AATA 6184

Regmee (Migration) [2020] AATA 6184 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Niraj Regmee
Mrs Nisha Barakoti

CASE NUMBER:  1921427

HOME AFFAIRS REFERENCE(S):          BCC2019/1323648

MEMBER:Noelle Hossen

DATE:21 October 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants’ Student (Temporary) (Class TU) visas.

Statement made on 21 October 2020 at 11:40am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant has not demonstrated the value of the proposed courses to his future – strong personal and social ties to Australia – significant period of time living in Australia– genuine temporary entrant criterion not met––use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, 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 26 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 15 March 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).

4. On the 1 April 2020 the Tribunal forwarded an invitation to the applicant pursuant to section 359(2) to provide further information prior to the hearing to the Tribunal.

5. The first named applicant  responded to the invitation and provided the Tribunal with a completed Form 17 on the 15 April 2020.The  first named applicant provided the following documents prior to the hearing, a new current Certificate of Enrolment created on the 4/08/2020, Medibank Health statement, employment contract and a letter from Kingdom College dated the 15 August 2020 and a  GTE statement. The Tribunal has read and considered all of the documents provided to the Tribunal including a further set of submissions provided by the first named applicant just prior to the hearing.

6. The first named applicant appeared before the Tribunal on the 17 August 2020 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. 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?

11. 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.

12. 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.

13. The first named applicant arrived in Australia in 2008 with his wife from Nepal. He was born on the 23 November 1982, so he was 37 years of age on the date of the hearing.

14. When he arrived in Australia he came as a dependent on the second named applicant’s student visa. He says that his wife did not take up the dream of becoming a qualified chef, so he decided to do so instead by applying for a student visa to study Commercial Cookery.

15. He was a dependent on his spouse’s visa until February 2011.He was able to apply and was granted 3 separate student visas from February 2011 to July 2015.The 3 visas ended on 03/2013, 05/2014 and 07/2015 respectively. He then obtained a graduate work visa from September 2015 until March 2017.He then applied for a student visa and was granted a student visa in May 2017.He applied for a further student visa and this was unsuccessful.

16. In his written submissions to the Department he said as follows: “I am determined to complete Certificate IV in Health and safety. This level, I believe will help me become a well presented Chef or a successful restaurant owner in the future with superior hospitality restaurant management skills and more importantly hold the knowledge and skills of Health and Safety, outstanding professional competence and an exciting successful future. Having mentioned above, with those knowledges and experience I want to go back to Nepal, be closer with my family and contribute to the country with my exceptional hospitality services in safety environment. “The written submissions were dated the 11 July 2019.

17. The first named applicant did provide a letter from Kingdom College to the Tribunal which stated that “the Student claimed that he could not complete whole units within the COE period due to the pandemic period so he had requested to be re-enrolled.”

18. Since writing that statement the applicant enrolled in a course being the Diploma in Work Health and Safety at Kingdom College with a start date of the 10 August 2020.The current Certificate of Enrolment was created on the 4 August 2020.The Tribunal notes that the applicant’s hearing date was known to him at the time that the certificate of enrolment was created as the actual hearing date was the 17 August 2020.The Tribunal does not place a lot of any weight in favour of the applicant’s case because of the enrolment as it appears that it was obtained so that he could claim to be enrolled at the hearing.

19. In his statement to the Department of Home affairs dated the 11 July 2019 the first named applicant stated as follows: “I first completed Certificate III in hospitality Commercial Cookery and then was misguided by the agent and ended up studying Certificate IV, Diploma and Advanced Diploma of Business. I was advised by the agent that doing the business courses will help in the future if I wanted to be a chef or work in a restaurant. While I studied the said business courses my friends living in Perth studied and continued with commercial cookery and always expressed that it was a great career.”

20. He then says that he went back and was able to complete an Advanced Diploma in Hospitality. He says he then consulted friends who advised him to do further study in work, health and safety. He says he will be able to guide the staff to a better workable kitchen environment.

21. The first named applicant must have been aware of his study pathway as he not only completed a Diploma in Business but proceeded to do an Advanced Diploma in Business.

22. He was able to secure a job as a chef in 2015/2016 when he was on a work graduate visa and earn a reasonable sum of money.

23. The details and evidence provided by the applicant do not convince the Tribunal that the applicant is a genuine student who is only acquiring skills so he can return to his home country to open a restaurant. The first named applicant has completed his courses at an Advanced Level in Hospitality and if he was keen to open a restaurant as he says he wishes to do he would have already left Australia to work on his dream with his wife.

24. Thee Tribunal has considered the value of the proposed courses to the applicant’s future. The Tribunal has also considered the GTE statement and further submissions setting out the applicant’s reasons for undertaking the intended courses of study in Australia. His comments are general in nature. They are not related in any detail or any great depth to possible future employment or a career plan. Therefore, the Tribunal is not satisfied that the first named applicant has demonstrated the value of the proposed courses to his future.

25. He has only returned to his home country on 2 occasions in the time that he has lived in Australia. He returned in 2013 and in 2019.He has been in Australia for 12 years which is an extraordinarily long time to be away from family and friends. The first named applicant has his closest family tie namely his wife living with him in Australia .The fact that he has only returned to his home country on 2 occasions in 12 years indicates to the Tribunal that his family ties are not likely to serve as a significant incentive for him to return to his home country. The Tribunal places significant weight against the applicant’s case by the fact that he has close personal ties in Australia.

26. The first named applicant says that he is a member of the international group of Nepalese students in Australia and New Zealand.He says he is a member of the Help group for international students from Nepal and he is available to help students find jobs and accommodation. He is also a student leader in his college and helps new students to enrol and so forth. The applicant has no doubt made close friends and has strong community ties in Australia as he has been in Australia for 12 years. The Tribunal weighs those facts in this paragraph against the applicant’s case.

27. The Tribunal notes that he has disclosed that he has worked at one point for what he calls Mustard Restaurant and was earning $55,000 per year in Australia. He has worked as a chef in Australia since 2014 so he would have gained enough experience and practical knowledge from the work placements in his courses with the various colleges to be enough to succeed in his own business.

28. The Tribunal does not accept his explanations as to why he wishes to do further studies as he has already had enough time to complete the vocational course of Certificate IV in Work Health and safety. The College stated in their letter that it was his choice to stop studying as the covid 19 situation in Western Australia.

29. The Tribunal found that his evidence was not convincing and that he gave vague and general answers to the questions posed by the Tribunal during the hearing.

30. He said that although both his wife and he are employed that they do not have any savings from their earnings in Australia as they are spending the money on their education. They say that they are spending $290 per week on rent and that they share the house with someone else. If they are short his parents help.

31. The first named applicant has been working solidly since his arrival in Australia in 2008.He started off as a cleaner, then a cook and was promoted to a chef.

32. He says that his wife works in cooking and childcare, but he is now working as a chef in an aged care facility.

33. He says that in Nepal there are not many work health and safety courses offered. He says that he enquired from universities and institutes but did not provide any evidence of his enquiries to the Tribunal. Even if he is studying as he says for the sake of opening his own business the Tribunal doubts that he requires the Diploma to be able to secure employment or to open a business in hospitality.

34. He did state that he expects to get a job after completing his studies in his form 17 that he will get a job and is expecting to receive more than 75,000 in his home country. In his genuine Entrant statement, he stated that his dream is to become a qualified chef or manage his own restaurant with enough knowledge of health and safety. Considering the fact that he has already studied the basics of Health and Safety and finished courses in Business and Hospitality at an Advanced Diploma level the Tribunal does not believe that the present courses are going to help him further his career as he has already has the qualifications of a chef and work experience in Australia.

35. The Tribunal has also considered the first named applicant’s potential circumstances in Australia. The Tribunal notes that the applicant has provided that he has strong personal ties in Australia as his wife lives here and he indicated that he is involved in various organisations to assist the Nepalese community .The Tribunal finds that the first named  applicant does have strong personal and social ties to Australia as he has lived here for 12 years. He has worked and studied and belongs to organisations which would indicate that he has strong personal ties to Australia.

36. The Tribunal’s strongly held view is that the first named applicant is motivated to remain in Australia to work until such time as he can find a pathway to a more permanent arrangement. The Tribunal is not satisfied that in the circumstances of his case the fact that he has lived in Australia for 12 years that he considers living in Australia to be temporary. Given that he is now 37 years of age and he has not lived in any other country for most of his adult life other than Australia he would have very limited or social ties to his home country.

37. Given the amount of time that the first named applicant and his wife have spent in Australia on student visas and associated bridging visas, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.

38. The Tribunal is of the view that his studies in work health and safety is relevant or necessary for him to work in management in a restaurant if he does intend to work as a chef or open his own business.

39. In his written documents submitted in respect of the review application the applicant has stated that he does not have to complete military service and that there is no civil unrest or political turmoil in his home country.

40. The applicant does not provide any evidence that he has not complied with the migration laws of other countries, so the Tribunal makes no findings in respect of those matters.

41. The second named applicant has applied for a visa on the basis of being a member of the first named applicant’s as part of the family unit and therefore their application is determined by the first named Applicant’s Application.

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

    DECISION

43. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Noelle Hossen
    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.