SHAPNA (Migration)

SHAPNA (Migration) [2021] AATA 4012 (6 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms JARIN TASNIM SHAPNA
Mr AHNAF TAHMID
CASE NUMBER:  1933641
HOME AFFAIRS REFERENCE(S):          BCC2019/4908661
MEMBER:Noelle Hossen
DATE:6 October 2021
PLACE OF DECISION:  Perth
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.

The Tribunal remits the application of the second named applicant.

Statement made on 06 October 2021 at 3:51pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – applicant cancelled several courses – partner’s lengthy stay in Australia – reasonable academic progress – maintaining residence in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 30 September 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.
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).
On the 5 March 2021 the Tribunal invited the applicants to provide further documents to the Tribunal pursuant to Section 359(2).
The applicants responded to the invitation on the 15 April 2021 and provided various documents which included a completed MR17 Form, submissions and various other documents.
The applicants appeared before the Tribunal on the 31 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicants were assisted in relation to the review by their representative who was a legal practitioner.
On the 31 August 2021 in strict accordance with Section 359(A) the Tribunal invited the applicant to respond to the fact that her PRISMS record indicated that she had cancelled several courses between the 7 October 2029 and the 12 July 2021. The applicant was provided with a copy of her PRISMS record and was given 14 days to respond by the 17 September 2021.
The applicant replied to the invitation and supplied various documents including an explanation from the College in North Sydney setting out that the courses that she attended had been superseded and that the change of the course name was from no fault of her own, copy of her costs paid towards her present course, information to confirm that she had attended the Course being the Diploma of Leadership and Management and copy of her results for the courses undertaken by her in her home country.
The applicant had provided a copy of the Delegate’s Decision to the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)
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?
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.
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.
The first named applicant was born on the 26 May 1994 in Bangladesh. She arrived in Australia on the 12 July 2019.
She did return to her home country for 2 weeks in March 2020.
The first named applicant is married to Ahnaf Tahmid (second named applicant) who has been living in Australia for 15 years.
In the Delegate’s Decision the Delegate stated as follows:” I have considered the applicant’s circumstances in Australia. I place weight on the applicant’s potential circumstances in Australia. I note that the applicant’s spouse Mr Ahnaf Tahmid, has spent a period of 4,184 days in Australia and only 199 days outside of Australia since their first arrival on 14/08/2004 is included in the student visa application. I am of the view that the applicant having their immediate family member who has spent significant time in Australia reduces their incentive to return to their home country on completion of their studies. I also note the applicant lodged this student visa application on the same day her spouse’s student Visa ceased. Noting that the applicant was dependent on that Visa, and that their spouse is now dependent on this Visa application I have serious concerns that they are using the student Visa program to remain as a defacto resident in Australia rather than to further their education as a genuine student.”
When the Tribunal asked the applicant whether they had any family living in Australia she said that she did not. The Tribunal notes that the applicant did return to her home country in March 2020 and that she went there to visit her grandmother who was ill because she was close to her. The Tribunal accepts that the applicant’s family save and except for her husband reside in her home country and that this may serve as a significant incentive for her to return to her home country. The Tribunal weighs those facts in favour of the applicant’s case.
The Tribunal does have some serious concerns that the applicants are using the student visa programme to maintain their residence in Australia because her husband has been living in Australia for 17 years on temporary visas. However, the first named applicant assured the Tribunal that her husband wishes to return to his home country as he has finished his studies.
She was asked what he had studied, and she said that he had concluded a master’s in business administration. He was working at Coles Supermarket but is now working at Coles Express.
She said that he was now planning to return to his home country. She was asked why she did not know that fact prior to her arrival in Australia to study, because they have been married since 2018. She said that she did not realise that this was his intention. She admitted that her husband was still here in Australia.
She said that he did work in real estate for 2 years. She was asked whether her husband had a pending visa application and she said that he did not.
She was asked how much money she had paid towards her course and she replied that she thought it was approximately $6000.00. She was asked to submit the evidence and she did so. Her written evidence was that she paid the following sums: $400 on the 23/8/2021, $1500 on the 11/03/2021, $1500 on the 18/08/2021 and $1500 on the 8/09/2021.
The first named applicant had only paid $3400.00 towards her course prior to the hearing. She said that she was paying in instalments and that she was due to pay another instalment on the 25 October 2021.
The first named applicant did say that she had got to know the husband prior to their marriage, and he had travelled to their home country to solemnise the marriage. They had communications by telephone prior to meeting and they had spent some time together before the marriage in their home country.
She said in her written evidence that when she came to Australia she was not enrolled to study as she was depressed caused by her grandmother’s illness. She did not seek any counselling or medical treatment for her depression but said that her husband helped her. She said that she had difficulty finding a suitable course as the courses were affected due to the covid pandemic.
However in her written evidence she said that she had been working for Woolworths from November 2020.She said that she expected to earn $10,400 per year which is surprising considering that she maintains that she could not study due to the fact that she had depression from April 2020 to February 2021.
In her written evidence she says as follows:” I always want to study IT courses as I have interest in it since young. My experience in Australia makes me realised how advanced the IT application can be in the business sector. As my family have business background and I helped with my family is business before. I know the potential of the application of information technology in the business domain in Bangladesh. The IT development there is still relatively limited and there is a trend of growing. I wish to apply my learning skills in my own planned IT service business and therefore I decide to study IT in Australia.
I chose South Sydney College after conducting my research and visiting the school’s premise. They have a strong teaching team with industry experienced trainers, and they provide excellent student support such as career planning and additional classes outside of lectures. I have started my study there and I have a very satisfying learning experience with South Sydney College. The school is also close to where I live, and it is very convenient for me.”
She said that prior to her arrival in Australia the only work that she did was helping her father in the family business. In the delegate’s decision he points out that the applicant did declare that their previous education was a higher secondary education that they completed in 2013. It is stated that the applicant did not seek employment following completion of their earlier education and since marrying in 2018.
The first named applicant has been studying her course since March 2021 but the course was cancelled and she started her course in July 2021.The reason she ceased the first course is stated on the PRISMS record that she had changed to a course in the same sector and a gap was created either at the start or end of the course or the study period for the new CoE is shorter than the original.
The applicant did go to great lengths to prove to the Tribunal that the cancellation of the course was not her fault as the college had changed the way that the course was being run due to the difficulties with the pandemic. She has also provided proof that she has made some payments towards the course fees and the Tribunal accepts that evidence.
She explained that she was studying customer service, managing client’s problems and networking. She says that she has passed 4 units so far. the course is being run online due to the pandemic.
The Tribunal accepts that the first named applicant did face difficulties due to the pandemic. The Tribunal accepts that the applicant did get upset over the fact that her grandmother was ill and that she did return to her home country in March 2020 to visit her grandmother. The Tribunal has sighted documents to show that her grandmother was ill. The Tribunal accepts that in spite of those difficulties the applicant has pursued her course and is now progressing well in her course. The Tribunal accepts that she is keen to finish her course and has genuinely tried to study and that she has paid for her courses as required by the college.
The Tribunal places weight in favour of the first named applicant’s case for the fact that she is a genuine student who is keen to continue in her studies.
The Tribunal does not have any evidence before it about whether the first named applicant has complied with the migration laws of other countries.
The Tribunal accepts that the first named applicant does not have any military service commitments when she returns to her home country and that there is no political or civil unrest in her home country.
The second named applicant has made his application as a member of the first named applicant’s family unit and therefore the determination of his application will be dependant on the result of the application of the first named applicant.
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).
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
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.
The Tribunal remits the application of the second named applicant.
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.

[2021] AATA 4012

6 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies