Shah Thakuri (Migration)

[2024] AATA 3195

Shah Thakuri (Migration) [2024] AATA 3195 (23 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ujala Shah Thakuri
Mr Ashish Silwal

REPRESENTATIVE:  Mr Jaya Prakash Oli (MARN: 1570827)

CASE NUMBER:  2206943

HOME AFFAIRS REFERENCE(S):          BCC2020/2679498

MEMBER:David Barker

DATE:23 August 2024

PLACE OF DECISION:  Sydney

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(a) of Schedule 2 to the Regulations.

Statement made on 23 August 2024 at 12:14pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – previous enrolment in short, inexpensive courses and current enrolment in diploma course, close to completion – change of subject area – family in home country and no strong social network in Australia – future work plans – divorce and second applicant no longer member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 29 April 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 20 November 2020. 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 visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay in Australia temporarily.

4. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 14 February 2024, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s 359(2) letter’). The s359(2) letter requests that a questionnaire (the s 359(2) questionnaire) be completed by the applicant. The Tribunal received a response to the s 359(2) letter on 27 February 2024.

5. On 4 June 2024, the Tribunal received a Form 1022 ‘Notification of changes in circumstances’ form which indicated the applicant and second named visa applicant were now divorced.

6. On 11 July 2024, the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System register (PRISMS). The purpose of this search was to ascertain whether the review applicant maintained their enrolment in a registered course of study, as required by cl 500.211(a). The PRISMS search showed that the review applicant held a current Confirmation of Enrolment (CoE)  and was maintaining study in a registered course of study, namely a Diploma of Nursing(Enrolled Nurse) course through the Southern Cross Education institute, which commenced on 14 February 2023 and which is due to finish on 1 October 2024.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

8. The applicant was assisted in relation to the review.

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

   BACKGROUND

10. The applicant is a national of Nepal and is 29 years old.

11. The decision record of a delegate of the Minister, a copy of which was provided with the review application indicates that they came to Australia in 2017 as a dependent applicant upon their then spouse’s student visa. She held this visa between 20 February 2017 and 30 September 2018. She then held a Temporary graduate (subclass 485) visa between 23 November 2018 and 23 November 2020.

12. A genuine temporary entrant statement (GTE statement) provided to the Department by the applicant states that the applicant enrolled in Certificate IV in Commercial Cookery leading to Diploma of Hospitality Management from January 2021 as she had a long term interest in  becoming a good chef and owning a restaurant or landing a dream job in Hospitality industry in Nepal. In this document the applicant explained that after her arrival in Australia she started working at a Woolworths store in Adelaide. As to her future plans at that stage, in the GTE statement the applicant indicated that after the completion of her course she and her then spouse had a plan to return back to her home country Nepal and start a restaurant business.

13. It is the Subclass 500 Student visa the applicant applied for on 20 November 2020, in association with their enrolment in the Certificate IV in Commercial Cookery and Diploma of Hospitality Management courses, which is the matter currently before the Tribunal on review.

14. The applicant’s PRISMS record shows that she completed both the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management, with the latter course finishing on 8 January 2023. The applicant then, on 14 February 2023, commenced a Diploma of Nursing (Enrolled Nurse) course through the Southern Cross Education institute, which she is due to complete on 1 October 2024.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 is a genuine applicant for entry and stay as a student.

16. 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?

17. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act (the Direction). 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.

18. 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.

19. The Tribunal considered the applicant’s circumstances in their home country. She returned to Nepal twice during 2019 upon one occasion in 2022. The s 359(2) questionnaire responses indicate the purpose of the latter trip was to visit her ill grandmother. Unlike her circumstances at the time of the delegate’s decision, the applicant is now divorced, resulting in all of her family connections, with the exception of a sister residing in Germany, members of her family reside in Nepal. These include her parents, two other siblings and members of her extended family. When considered in conjunction with community ties detailed in the s 359(2) questionnaire the Tribunal is satisfied these cumulative ties provide the applicant with a significant incentive to return to her home country.

20. As to the applicant’s circumstances in Australia, the s 359(2) questionnaire responses indicate that she has held steady employment with Woolworths since April 2017 and has also at times held other casual employment. The s 359(2) questionnaire responses also indicate that the applicant has a functioning social network in Australia. The Tribunal is mindful that these sorts of circumstances can be indicative of those of a person with an incentive to remain in Australia. However in the context where the applicant’s marriage has broken down and she lacks the strong incentive this would provide to remain in Australia in the circumstance where a spouse intended to reside here on an ongoing basis, the Tribunal is not persuaded the applicant’s ties with Australia present as a strong incentive for her to remain in Australia.

21. Regarding the value of the course to the applicant’s future, s 359(2) questionnaire responses contend that with the qualifications in the healthcare sector gained by her current course of study the applicant intends to return to her home country and work in healthcare sector. She describes her goal as after gaining a few years of experience working in healthcare in Nepal, her vision is to establish a healthcare business in Nepal that offers a safe and stimulating environment for older adults. The Tribunal considers these contentions to be reasonable and that there is a degree of relevance between the applicant’s current course and her currently stated future employment / business goals.

22. The Tribunal considered the amount of time the applicant has spent in Australia and whether the Student visa is being 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. Whilst it is apparent the applicant has not studied throughout all of the period since her arrival in Australia in 2017, the Tribunal does not consider this to be fatal to her application, as prior to the current application when her visa status was as a dependent on visas held by her then spouse there was no requirement or expectation that she maintain a consistent study history.

23. As to the applicant’s study history, it is apparent that since commencing studies in Australia in January 2021 she  has undertaken a series of short,  relatively inexpensive courses. However the Tribunal has placed positive weight on their being a pattern consistent study since January 2021 and academic progression during this period.

24. The Tribunal is mindful that there is not an apparent link between the hospitality pathway of the applicant’s previous study choices and the nursing pathway reflected by her current course. However as is  discussed in  the Direction, decision makers  such as the Tribunal should allow for reasonable changes to career or study pathways and in effect there is only one such change in the applicant’s study history.

25. The applicant has now resided in Australia for over seven years and the Tribunal is satisfied they have a knowledge of Australian society and that they have living arrangements which make viable their proposed further stay in Australia.  The Tribunal is also mindful that there is now only a few months before the applicant’s nursing course will be completed and that she has indicated her intention to then return to her home country. The Tribunal considers it reasonable that in the circumstance where she is no longer in a spousal relationship the applicant seeks to have qualifications which would improve her employment prospects in her home country.

26. On the basis of the material which is before it the Tribunal is not persuaded that  it establishes that the Student visa application is being used primarily for maintaining ongoing residence, or to circumvent the intentions of the migration programme.

27. Considering the applicant against all factors specified in Direction 108 and other information raised by the applicant, the Tribunal is on balance satisfied that the genuine temporary entrant criterion is satisfied. On the basis of the cumulative material before it, the Tribunal considers the applicant should be given the opportunity to complete the course she is enrolled in before she returns to her home country.

28. 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).

    The second named visa applicant

29. The applicant has informed the Tribunal that she is divorced from the second named visa applicant. As a consequence the second named visa applicant is unable to meet required criteria for the grant of a student visa because they are no longer a member of the family unit of a person who may, on further consideration by the Minister, satisfy the primary criteria in cl.500.212

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

    DECISION

31. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500212(a) of Schedule 2 to the Regulations.

    David Barker
    Member

    
    

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil

    
    

    Minister for Home Affairs and Minister for Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

    This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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;

    d) whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; 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.

    iii. b. Previous travels to Australia or other countries, including:

    iv. 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;

    v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    vi. 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

    vii. 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 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.