Silwal (Migration) [2021] AATA 4354 (27 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Rimki SILWAL
CASE NUMBER: 1935860
HOME AFFAIRS REFERENCE(S): BCC2019/4190214
MEMBER:Mireya Hyland
DATE:27 October 2021
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.500.211 of Schedule 2 to the Regulations; and
·cl.500.212(a) of Schedule 2 to the Regulations.
Statement made on 27 October 2021 at 7:10pm
CATCHWORDS MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – continuous enrolment – involvement in community health programs – family ties in Nepal – value of the course to the applicant’s future – plans for community services work – decision under review remitted
This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 November 2019 to refuse to grant the applicant, Rimki Silwal, a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (the Act).
Ms Silwal applied for the visa on 23 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Ms Silwal 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 criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Ms Silwal does not satisfy the requirements in cl.500.212 because she does not intend genuinely to stay in Australia temporarily. The delegate did not consider any requirements other than the criterion in cl.500.212(a) of the Regulations. Ms Silwal lodged an application for review of the decision on 19 December 2019. The delegate’s decision was provided to the Tribunal by Ms Silwal with her review application.
Ms Silwal was born in Rautahat, Nepal on 14 January 1997 and is 24 years of age. She first entered Australia on 23 May 2019 as the holder of a Temporary Activity (Class GG) Subclass 408 visa that ceased on 23 August 2019. She has not returned to Nepal since arriving in Australia. On 22 August 2019, Ms Silwal enrolled in a Diploma of Community services at the Australian Health and Management Institute (AHMI) which commenced on 14 October 2019. On 2 August 2021, she enrolled in a Bachelor of Community services at Scott’s College which commenced on 13 September 2021. Ms Silwal completed her…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Silwal (Migration) [2021] AATA 4354
Case
[2021] AATA 4354
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Ms Silwal against a decision regarding her application for a Subclass 500 (Student) visa. The Administrative Appeals Tribunal (AAT) was required to determine whether Ms Silwal met the primary criteria for the visa, specifically whether she was enrolled in a course of study as defined by the Migration Regulations 1994 and whether she genuinely intended to stay in Australia temporarily.
The Tribunal considered two key legal issues. Firstly, whether Ms Silwal was enrolled in a "course of study" as defined by the Regulations, which requires enrolment in a "full-time registered course" provided by an institution registered under the Education Services for Overseas Students Act 2000. Secondly, the Tribunal had to assess whether Ms Silwal met the "genuine temporary entrant" criterion, which requires satisfaction that the applicant genuinely intends to stay in Australia temporarily, having regard to their circumstances and immigration history, as guided by Direction No. 69.
The Tribunal found that Ms Silwal was enrolled in a full-time registered course, having completed a Diploma of Community Services and subsequently enrolling in a Bachelor of Community Services. Regarding the genuine temporary entrant criterion, the Tribunal accepted Ms Silwal's stated reasons for continuing her studies and her commitment to depart Australia upon completion. While acknowledging her previous Temporary Activities visa had expired and she had immediately applied for a student visa, the Tribunal found her explanation for this course of action to be credible, concluding she did not intend to stay indefinitely.
Consequently, the Tribunal remitted Ms Silwal's application for the Subclass 500 (Student) visa to the Minister for reconsideration, with a direction that she met the criteria relating to enrolment in a course of study and being a genuine temporary entrant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The issues in this case are whether Ms Silwal is enrolled in a course of study as defined in the Regulations and intends genuinely to stay in Australia temporarily. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE For the visa to be granted, an applicant is required to meet the primary criteria set out in cl.500.2 of the Regulations at the time of decision. These primary criteria include requirements relating to enrolment (cl.500.211) and being a genuine applicant for entry and stay in Australia as a student (cl.500.212).Ms Silwal is Enrolled in a Course of Study - cl.500.211(a) Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl 500.211(a). Ms Silwal does not claim to meet any of the alternative criteria in cl 500.211 of the Regulations. A ‘course of study’ is defined in cl.500.111 of the Regulations as, among other things, a ‘full-time registered course’. A ‘registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered under Division 3 in Part 2 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) to provide the course to overseas students. The Department of Education, Skills and Employment (DESE) is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the Provider Registration and International Student Management System (PRISMS). PRISMS is a computer system developed by DESE in association with the Department of Home Affairs (DHA) to receive and store the information about accepted overseas students that is given to the Secretary under the ESOS Act. It provides a secure system for CRICOS registered educational institutions to issue ‘confirmations of enrolment’ (CoE) as evidence of enrolment in a CRICOS registered full-time course and reports changes in course enrolment, for instance unsatisfactory progress, ceasing study, changes to the duration of study, etc. The Tribunal is satisfied that a PRISMS search is reliable evidence of the enrolment in a full-time ‘registered course’ (as defined) of the person who is the subject of the search. The Tribunal made a search of PRISMS on 20 October 2021 to verify whether Ms Silwal is enrolled in a full-time registered course. The PRISMS search revealed that Ms Silwal successfully completed a Diploma of Community services from 14 October 2019 to 10 October 2021 (CoE AE0C8C36) at AHMI. Since 13 September 2021 she has been enrolled in, and is studying, a Bachelor of Community services with Scott’s College. Her bachelor’s degree is due to be completed on 31 May 2024 (CoE C6F36A37). Therefore, the Tribunal is satisfied that at the time of this decision, Ms Silwal is enrolled in a course of study and accordingly cl.500.211 is met.Ms Silwal Intends Genuinely to Stay in Australia Temporarily - cl.500.212(a)
Decision
Reasons for decision
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.500.211 of Schedule 2 to the Regulations; and· cl.500.212(a) of Schedule 2 to the Regulations.Mireya HylandMemberAttachment – Direction No.69DIRECTION 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 2016Peter DuttonMinister for Immigration and Border ProtectionNote: 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 - PreliminaryName of DirectionThis 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.CommencementThis Direction commences on 1 July 2016.InterpretationAct 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) visaStudent Guardian visa means a Subclass 590 (Student Guardian) visa.ApplicationThis 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.PreambleThe 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; andb.the applicant’s immigration history; andc.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; andd.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 temporarilyPart 2 of Direction No. 69 - DirectionsAssessing the genuine temporary entrant criterion1.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; andb.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; andd.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 circumstances6.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 country9.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; ande.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 Australia11.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; ande.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 future12.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; andb.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; andc.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 history13.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; andii.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; andiv.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-complianceIf the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant15.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 matters16.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.
Ratio Decidendi
Legal Principle Established
The Tribunal accepts Ms Silwal is currently attending her course, studying, and achieving course progression. It finds the reasons why she wishes to continue to study the course she is enrolled in are credible and finds her current enrolment and future plans support her claim that she sees Australia as a temporary location for study. It accepts Ms Silwal is genuine in her evidence that she wishes to achieve the qualifications for the reasons she claims. She has undertaken that she will depart Australia on completion of her community services course. On the totality of the evidence, the Tribunal is satisfied that Ms Silwal is committed to study in Australia so she can work in her preferred health care discipline as well as improve her employment and career opportunities when she returns to Nepal. Ms Silwal’s Immigration History Direction No. 69 provides that regard should be had to both Ms Silwal’s visa and travel history. This includes her previous visa applications for Australia and other countries, as well as her previous travel to Australia and other countries.Previous Visa History When considering Ms Silwal’s previous visa history, whether she has previously applied for an Australian temporary or permanent visa, or whether she has previously applied for visas to other countries are relevant. If there has been an Australian visa application consideration should be given to the status of that application, for instance if it is yet to be finally determined (within the meaning of s.5(9) of the Act), granted, refused, etc. Circumstances that have led to any refusal of a visa are also identified in Direction No. 69. Ms Silwal applied for her Temporary Activities visa in April 2019 which was granted on 13 May 2019. She arrived in Australia claiming to be a genuine temporary entrant on 23 May 2019. Her visa ceased on 23 August 2019. The Tribunal considers it relevant that instead of leaving Australia on or around 23 August 2019 as undertaken in her Subclass 408 visa application, Ms Silwal enrolled in a course of study on 22 August 2019 (just one day before her visa expired) and lodged a student visa application to continue her stay in Australia. The Tribunal acknowledges that it is possible for an applicant to be a genuine temporary entrant to Australia and still intend to explore the possibility of applying for a further temporary visa during his/her stay if the intention is to leave if that investigation does not come to fruition. Ms Silwal has provided the Tribunal with a credible explanation for her decision to stay and study in Australia rather than returning to Nepal at the end of her work on the film project for which she was granted her Subclass 408 visa. Therefore, it accepts as plausible that even if she did come to Australia with an intention of possible study, she did not have the intention of staying indefinitely, but rather intended to return to Nepal if her enquiries were fruitless. Ms Silwal has not applied for any visas other than her Student visa since entering Australia.