Shrestha (Migration)

Shrestha (Migration) [2020] AATA 3021 (19 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sunita Shrestha
CASE NUMBER:  1830858
HOME AFFAIRS REFERENCE(S):          BCC2018/2507863
MEMBER:D Triaca
DATE:19 May 2020
PLACE OF DECISION:  Melbourne
DECISION: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.500.212 of Schedule 2 to the Regulations.

Statement made on 19 May 2020 at 11:48am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – steady academic progress – applicant continued courses after visa refusal awaiting review – contact with her former employer in Nepal – property ownership in Nepal – value of studies to future employment – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
Saini v Minister of Immigration and Border Protection [2015] FCCA 2379
Saini v Minister of Immigration [2016] FCA 858
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 18 October 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 4 July 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.
The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 30 March 2020. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicant in connection with this application for review.
On 14 April 2020, the applicant responded to the Tribunal’s invitation in writing (359 Response) and provided documentation in support of the application. He consented to the Tribunal determining the application without a hearing.
In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.
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 critical issue is whether the applicant satisfies the primary criteria contained in cl 500.212 set out above. That clause states that for a student visa application to be successful the applicant must be a ‘genuine applicant for entry and stay as a student‘, in Australia.
The meaning of “genuine applicant” is well considered in Vu Vu (Migration) [2019] AATA 5740.[1] While not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic’, ‘real’ or ‘true’ according to its ordinary and natural meaning. In order to be regarded as genuine, the applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified.[2]
[1] [21] – [35]
[2] Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858
The applicant is a 44 year old citizen of Nepal. She was granted a visitor visa offshore on 23 April 2018. He arrived in Australia on 16 May 2018. On 4 July 2018 he applied for a student visa, proposing to study a Diploma of Leadership and Management and a Certificate IV in Leadership and Management. Her studies were due to conclude in July 2020. On 18 October 2018 a delegate of the Department refused her application (delegate’s decision). On 22 October 2018 he applied to the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of that decision.
The Tribunal has read and had regard to the applicant’s 359 Response, the delegate’s decision, supporting documents provided by the applicant to the Department and the Tribunal including the applicant’s GTE Statement received with 359 Response; Evidence of Brother’s financial support; Property Valuation; Commonwealth Bank Statement; Confirmation of Enrolment Barton International English; Academic Transcript Tribhuvan University, Nepal; Diploma Transcript George Brown College Statement of Results; Letter from George Brown College confirming current enrolment; Certificate of Overseas Student Health Cover; GTE Statement 6 August 2018 filed with original application; IELTS Results; Letter from Invidepfo Nepal 18 July 2018; Payslip St Georges League Club; Bank Account certification 30 March 2018 and Bank Statements; Passport; Bridging Visa Information; Application for a student visa 4 July 2018.
After arriving in Australia, the applicant commenced studying a General English course at Barton International College which she completed in October 2018. In November 2018 she commenced a Certificate IV in Leadership and Management at George Brown College which she completed in November 2019. She then commenced a Diploma of Leadership at George Brown College. She is due to complete this course in November 2020. She provided a letter from George Brown College dated 14 April 2020 confirming that she is currently studying that course on a full time basis and she provided a statement of results to date that confirmed she has completed two units in the Diploma course.
Having regard to the evidence before the Tribunal, it is apparent that the applicant is doing what a student on a student visa ought to be doing. That is studying in approved courses and progressing academically. This weighs in favour of granting the application.
It is in the applicant’s favour that she has continued her studies following the refusal of her application by the delegate and uncertainty surrounding the outcome of her application to the Tribunal. This indicates she is interested in the educational benefits of the proposed courses in addition to the substantive visa.
The Tribunal accepts that the Diploma of Leadership and Management naturally follows from her recently completed Certificate IV in Leadership and Management and is consistent with her previous education. The applicant has a reasonable knowledge of living in Australia and her education provider.
The Tribunal accepts that there is some value to her future in completing the proposed studies. She has provided a letter from her employer in Nepal and appears to be a highly valued employee. She believes that the Australian qualification will have value to her and assist her in returning to her home country and obtaining a promotion. The Tribunal accepts that there will be some value to her future in completing the course. It follows that the Tribunal accepts that the applicant’s future remuneration is likely to increase if she is able to return to Nepal having completed her studies. The letter from the Chairperson of Invidepfo, her former employer, confirms that she is likely to find suitable employment upon her return home.
She states that she has been unable to find equivalent courses in her home country and in these circumstances she has reasonable reasons for seeking to study in Australia. Whilst the course is at a lower level than her overseas studies, the Tribunal accepts that there is some value to her future in completing the Diploma course in Australia.
The Tribunal notes that the applicant arrived in Australia on a visitor visa and subsequently changed her intentions and applied to study here once onshore. This appears from the delegate’s decision that this fact weighed against his application. However, the Tribunal has the benefit of assessing the applicant’s academic progress in Australia over the past 18 months which indicates she has applied herself to her studies and made academic progress. Furthermore, the Tribunal notes that applying for a student visa whilst onshore is not prohibited under the Regulations and, accordingly, the Tribunal does not consider it adverse to the application.
The applicant’s family is stated to be her Mother and Son resident in Nepal and her Brother resident in Australia. She says she speaks to her family in Nepal daily. She is also in contact with her former employer in Nepal. The Tribunal considers that the presence of the applicant’s family in Nepal is likely to operate as a significant incentive for her to return home. The Tribunal also considers that the presence of the applicant’s brother in Australia is a tie to Australia that is likely to act as a strong incentive to remain here. However, there is no evidence to suggest that the applicant’s relationship with her brother is of such a nature that it outweighs her incentive to return home.
The evidence in relation to the applicant’s economic circumstances is that she has the financial support of her brother to study in Australia. She has provided evidence including bank statements from Nepal and Australia. She has declared property in Nepal. Her expenses in Australia are approximately $AUD18,480 per annum. There is no evidence the applicant works in Australia. She worked in Nepal.
The Tribunal does not consider owning property in an overseas country operates as an incentive to return there. Property may be readily sold or retained and utilised to produce income. The Tribunal does not consider that the evidence supports a conclusion that the applicant has an incentive to return home or remain in Australia and the applicant’s economic circumstances are a neutral factor.
There is no evidence in relation to the applicant’s circumstances in her home country relative to others there.
The applicant states, and the Tribunal accepts, that she has no concerns in relation to military service commitments in her home country.
The applicant states, and the Tribunal accepts, that she has no concerns in relation to political or civil unrest in her home country.
There is no evidence the applicant has travelled other than between Australia and Nepal. Her travel and immigration history is not adverse to the application.
There do not appear to be any other matters relevant to the application.
Having regard to all the evidence before it, the Tribunal considers the applicant is a genuine student. She has resided in Australia since 2018 and since arriving she has studied continuously in approved courses and has demonstrated academic progress. The Tribunal considers that she is likely to return home to Nepal given that her immediate family, including her son continues to reside there.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
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.
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 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.500.212 of Schedule 2 to the Regulations.
D Triaca
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.

[2020] AATA 3021

19 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies