Shrestha (Migration)

[2024] AATA 651

Shrestha (Migration) [2024] AATA 651 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Simran Shrestha

CASE NUMBER:  2211998

HOME AFFAIRS REFERENCE:              BCC2020/2404593

MEMBER:Lilly Mojsin

DATE:26 March 2024

PLACE OF DECISION:  Sydney

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 26 March 2024 at 11:34am

CATCHWORDS  
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant did not study for a period of time due to circumstances beyond her control – a truthful witness who did not embellish her claims – course is consistent with her current level of education – genuine applicant for entry and stay in Australia as a student – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 August 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 October 2020. 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.

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 .

4. The applicant appeared before the Tribunal on 19 March 2024 to give evidence and present arguments.

5. Prior to the Tribunal hearing the applicant provided the following documents:

   ·Medical Certificate dated 8 March 2024 from Railway Terrace MEDICAL Practice outlining the applicant’s medications and stating she has an active past history of gastro-oesophageal reflux disease in 2021, Helicobacter pylori breath test in 2022 and inactive past history of Pharyngitis and 2022 sinusitis.

   ·Confirmation of Enrolment [CoE] from Australian Harward International College Certificate III in Early Childhood Education and Care commencing on 19 February 2024 and ending on 16 February 2025 and Diploma of Early Childhood Education and Care commencing on 17 February 2025 and ending on 15 February 2026.

6. A submission from the applicant stated that:

   Upon arrival she was enrolled in a college far below the standards expected and the institution turned out to be an establishment operating from what seemed to be a residential apartment.  She also became very homesick, thus affecting her studies and making it difficult to focus, impacting on her mental health. She struggled between her desire for a better educational environment and reluctance to burden her parents emotionally and financially left me in a difficult position.

   COVID-19 pandemic suddenly changed everything intense loneliness, depression, and anxiety, which made it extremely difficult for her to cope . her parents began struggling financially which began to cause strain on their marriage with many arguments, compounding her stress.

   After a while she was able to start studying the course she wanted. She found a casual job and decided to pursue her vision of working in early childhood education. She searched for courses to gain the necessary knowledge and skills and found the Early Childhood Diploma program. COVID-19 pandemic hit again with the second wave, ie made an already financially difficult time worse, thus making it almost impossible to pay for her classes. Her parent’s business had been impacted worse by the second wave of the COVID-19 pandemic, which had left her without any financial support. This resulted in the cancellation of her COE. She began feeling frequently stressed again

   Last year, she was able to secure a part-time job which has helped her develop a more positive outlook on life. This positive environment has been instrumental in helping her overcome her personal challenges and continue being resilient. She took a break before starting her studies due to her aforementioned challenges including financial problems, mental and physical health issues, compounded by the effects of COVID-19. She is

   currently enrolled in Certificate III and Diploma in Early Childhood, which is an important step towards her dream of becoming an early childhood educator. She plans to go back to Nepal. Her dream is to open a childcare centre and make a positive impact on the community establishing and running her own childcare centre.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the time of application for the visa the applicant was enrolled in Certificate III in Early Childhood Education and Care and Diploma of Early Childhood Education and Care.

8. At the time of this decision the applicant is enrolled in Australian Harvard International College Certificate III in Early Childhood Education and Care commencing on 19 February 2024 and ending on 16 February 2025 and Diploma of Early Childhood Education and Care commencing on 17 February 2025 and ending on 15 February 2026.

9. 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.

10. 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.

11. 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.

12. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision. The Court went on to note that [the Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.

    [1] [2020] FCAFC 16 (24 February 2020)

13. The applicant is 27 years of age.  The applicant is single and is from Nepal, her parents live there.

14. As the applicant is a citizen of Nepal, there are no military service commitments for the applicant. There is no civil or political unrest in Nepal.

15. The applicant gave evidence to the Tribunal candidly and without embellishment. After her arrival in Australia, the applicant attended a College in Redfern that was located in a house. Despite her initial misgivings about the school, she completed a Diploma of Business but then had difficulty with the College obtaining her Diploma, despite completing the course as they demanded additional funds from her.

16. She is now studying childcare and wants to work in this industry. She has Business qualifications. It is the applicant’s intention on return to Sri Lanka to start her own business.

17. The applicant presented as a truthful witness who did not embellish her claims. The Tribunal is satisfied that the applicant is seeking to undertake a course that is consistent with her current level of education and is satisfied the course will assist the applicant to obtain employment or improve employment prospects in her home country.

18. On basis of above, the Tribunal finds, on balance, that the applicant does intend genuinely to stay in Australia temporarily.

19. Accordingly, the applicant meets cl.500.212(a).

20. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

21. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), and 8533 (notify address/education provider).

22. The Tribunal accepts that the applicant did not study for a period of time due to circumstances beyond her control ie. COVID, her illness, her family’s financial difficulties for a period of time. There is no evidence before the Tribunal that the applicant has an adverse immigration history in any other countries. Therefore the Tribunal is satisfied there is no evidence before the Tribunal that the applicant does not intend to comply with the conditions of the visa subject to which the visa is granted as required by cl.500.212(b).

23. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter. There is no other relevant matter.

24. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

25. 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

26. The Tribunal remits the applications for Student (Temporary) (Class TU) visas 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.

    Lilly Mojsin
    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

    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.