Sherpa (Migration)

[2019] AATA 6248

Sherpa (Migration) [2019] AATA 6248 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nima Yangjee Sherpa
Mr Khedup Sangpo Lama

CASE NUMBER:  1922747

HOME AFFAIRS REFERENCE(S):          BCC2018/3497637

MEMBER:Meredith Jackson

DATE:26 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 26 November 2019 at 8:55am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine temporary entrant criterion not met – poor record of completion of courses –using student visa to maintain ongoing residence – lack of academic progress –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 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 31 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 14 September 2018. 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.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the primary applicant (the applicant) met the enrolment requirement.

4.    The applicants appeared before the Tribunal on 20 November 2019 to give evidence and present arguments.

5.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed on the basis that the applicant does not meet the Genuine Temporary Entrant criteria.

SUMMARY OF THE CASE

6.    The primary applicant is Ms Nima Yangjee Sherpa, a citizen of Nepal. Ms Sherpa has been in Australia since 3 October 2013, having been granted a student visa to study in the higher education sector. Since arrival she has been enrolled in 20 courses across several disciplines and completed none. She claims to have suffered from stress conditions that disrupted her capacity to study. Having been refused a visa because she did not meet the enrolment requirement, she is currently enrolled in a Bachelor of Accounting that she started studying on 4 November 2019, Ms Sherpa claims she would like to also complete a Masters of Accounting in Australia but would then return to her family in Nepal. The secondary applicant is Mr Khedup Sangpo Lama, the applicant’s partner and a citizen of Nepal, who works in aged care in Australia.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student (cl.500.212).

Change of dispositive issue from cl.500.211 to cl.500.212

8.    While the delegate refused to grant the visa based on the applicant’s enrolment status (cl.500.211), the Tribunal considers the applicant’s circumstances at the time of this decision are such that they require the Tribunal to consider whether the applicant is a genuine applicant for entry and stay as a student (cl.500.212).

9.    At the hearing, the Tribunal conveyed to the applicant that while the delegate had refused to grant the visa on the basis that she had not satisfied the enrolment requirement, the Tribunal on review was actively considering whether she satisfies the Genuine Temporary Entrant (GTE) criteria. As the Tribunal had said to her at the start of the hearing, for the grant of a student visa an applicant needed to demonstrate they are a genuine temporary entrant and a genuine student who is progressing academically.

Documents provided to the Tribunal prior to hearing

1. In the invitation to attend the hearing the applicant was asked to provide documents that show her past studies in Australia, including copies of all attendance certificates, academic transcripts and certifications of completion as well as any documents evidencing any work related to her past or intended studies in Australia. The applicant provided prior to the hearing, copies of:

   a.The delegate’s decision;

   b.Academic transcripts and interim statements of interim results;

   c.Email records of communications with education providers;

   d.A medical certificate dated 5 June 2019 about the applicant’s mental health issues and requesting a reduction in workload to 1-2 subjects per semester;

   e.Identity documents for both applicants.

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

1. 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?

1. 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.

2. 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.

Evidence given at the hearing

1. Consistent with the requirements of Direction 69, the Tribunal raised with the applicant issues including her circumstances in her home country, her potential circumstances in Australia, the value of the course she is studying to her future and her study and immigration history. This included reference to the applicant’s record in the Provider Registration and International Student Management System (PRISMS).

2. Adopting the procedure in s.359AA of the Act, the Tribunal said it had information in the applicant’s PRISMS record to put to her. It was information the Tribunal considered would be the reason or part of the reason for affirming the decision under review, subject to any comment or response the applicant might wish to provide. The information was a record of the applicant’s studies in Australia and was directly relevant to the review. The Tribunal gave a copy of the information to the applicant and provided her with time to consider it. The Tribunal said that if she required more time it could be requested and the Tribunal would consider the request. The applicant said she was prepared to comment on the information and understood its relevance.

3. In response to the Tribunal’s questions, the applicant stated:

   a.After she applied for the visa in September 2018, and after the department requested on 29 May 2019 an updated Confirmation of Enrolment (COE) because the one provided with the application had been cancelled, she did not provide the requested response. She had suffered mental stress and she provided a medical certificate. It had been issued because she was suffering from overload in her studies, and she was seeking to have the fulltime requirement of four units per semester reduced to one or two units per semester. However she had had no response from her college. This was why she did not respond to the department’s request;

   b.Currently she is studying full-time and does not suffer any medical issues; she intends to complete her studies, with the benefit of credit for incomplete studies in tourism; then potentially progress to a Master’s degree; and then return to Nepal to work and be with her family;

   c.While she had not completed only one of 20 course enrolments recorded in PRISMS since 2013, a Diploma of Hotel Management, (and later stated she had not completed any course) she had finished all but two units of in a Bachelor of Business and would have completed if not for a low grade point average, and she would get credit for her current enrolment;

   d.She had changed from accounting to business and back again; she switched to accounting in November 2019 but this was at a different provider;

   e.She had been a good student but she had been affected by stress;

   f.In Nepal she had completed 12^th grade equivalent;

   g.She did not study beyond that in Nepal because her family was in business and she wanted better qualifications to help them;

   h.All her family were in Nepal, apart from her husband who was here; she had no other family in Australia;

   i.If the visa were refused, she would not be able to get a job in Nepal, she could not help her family, and she had come here to study and she wanted to complete her studies and show her parents she had done so; she had only a year to complete; she would feel shameful if she did not complete; however she would still have a decent living with her family;

   j.In Australia she worked in a hotel in hospitality management, she earned around AUD 20 per hour;

   k.She was not using the student visa program to extend her stay in Australia, she had given some thought to staying to do a Masters, but her intent was to complete that and go home to her family;

   l.She had struggled in her initial years here because she was not an accounting student before, and she had found the study difficult, but she was going alright now as the classes were small;

   m.If she stayed in Australia to complete her studies she would have good opportunities in both Nepal and Australia. Although the income here was much better living was cheaper there; essentially she wanted to go and help her family out in Nepal; her income with a Bachelor degree would be around NPR 20,000-25,000 a month (approximately AUD 250-350) in Nepal; whereas in Australia she would earn as an account perhaps AUD 1,000 weekly or AUD 4-5,000 a month.

   n.She had not travelled to other countries, had not had a visa cancelled or refused other than this one, had not applied for other visas in Australia or elsewhere; and had always complied with visa conditions.

4. The secondary applicant Mr Khedup Lama told the Tribunal in evidence that he was a support worker at a non-profit organisation helping people with disabilities. He had completed a Certificate III in Aging since arriving in Australia. He had seen his wife’s stress first hand and it had been tough going mentally because she was not studying effectively; but now she had more confidence.

Analysis and conclusions

1. The Tribunal has considered the applicant’s submissions both written and oral, and considered her circumstances in her home country, potential circumstances in Australia, and the value of the courses she has studied and plans to study, to her future. The Tribunal has also considered her immigration history and other relevant information provided by the applicant or otherwise available, including information that may be either beneficial or unfavourable to the applicant, and has done so in accordance with Direction No.69. The Tribunal concludes as follows:

   a.The applicant has been studying intermittently since 2013 but has not been progressing academically. Her academic record, as shown in PRISMS entries, is of 20 enrolments and no completions. The Tribunal accepts that some of the entries in PRISMS might result from administrative duplication, given the number of times the applicant has changed courses, however on her own evidence, she has not completed a course since her arrival in Australia in 2013 (notwithstanding her initial claim that she had completed a diploma course), and has spent the bulk of her time not studying. A multitude of short-lived enrolments and no result in any of them, save some credit points for another, duplicated enrolment, is not the pattern of a genuine student who is intent on academic progress, and the Tribunal weighs this consideration strongly against the applicant.

   b.The applicant is now enrolled in a Bachelor of Accounting and claims she is studying effectively. She has been enrolled for little more than two weeks in this latest course, so in the absence of convincing corroboration, it is difficult for the Tribunal to know whether she is likely to perform this time. Given her record, the Tribunal is not confident she will complete the course, even with some credit from her previous attempts at a degree. She claims, and her witness supports, that she is in better health now and more able to work, but again, the Tribunal cannot be certain as she has provided scant information about her health issues. The information she has provided is dated June 2019 and is seeking a reduction in study load. The Tribunal is not persuaded to rely on this single document from her doctor in June of 2019 and oral evidence from her husband at the hearing, to fully explain the applicant’s health status and her failure to progress since she arrived in 2013. However the Tribunal is mindful that stress is capable of impairing students’ study. The Tribunal weighs this consideration lightly in favour of the applicant.

   c.The applicant claims she has an intention to complete her Bachelor course and then do a Masters course. This would extend her stay in Australia to 10 years at a minimum and in the nine years already elapsed, her study record is such that the Tribunal has no confidence she will complete and progress as she indicates she will. It is more likely the applicant is using the student visa program to extend her stay. The Tribunal weighs this consideration against the applicant.

   d.The applicant claims she has no compelling ties to Australia other than the presence here of her husband, as all the rest of her family are in Nepal. The Tribunal is not fully persuaded, and notes she has been away from that family for a very long period, almost a decade, and proposes to stay away for years more. Her husband’s presence and employment here provide reasons to remain that are weigh more heavily than her arguments that she is focussed on going home to help her family. Further, the applicant admits that even with qualifications, she will earn a small income in Nepal compared with that she could earn in Australia in a similar professional role. On balance, the Tribunal is not satisfied that the applicant has reasons to return to Nepal that outweigh her reasons to remain in Australia. The Tribunal weighs these considerations against the applicant.

   e.The applicant states that if the visa were not granted, she would face several obstacles in Nepal. While they are not circumstances that would prevent her from returning, they are serious obstacles. She listed them at hearing as including that she could not get a job; that she could not help her family; and that she would bring shame to her family because she had not completed her studies. The Tribunal understands the applicant’s return to Nepal will be difficult, and that her lack of completion will affect her and her family, but is not persuaded to weigh this in the applicant’s favour. She had not presented compelling evidence that her failure to study was because of health or other circumstances beyond her control, and in its absence, the Tribunal can only conclude that the applicant herself is responsible for the difficulties she will face in the future. The Tribunal does not weigh this circumstance in favour of the applicant.

   f.The applicant claims her immigration history is that she has not travelled to countries other than Australia; she has never been denied a visa other than the one under review; she has not applied for visas elsewhere and has always complied with visa conditions. The Tribunal considers the applicant has however, used the student visa program to extend her stay in Australia and weighs the applicant’s immigration history against the applicant.

2. 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).

3. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

4. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

DECISION

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

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).

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

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.