Silwal (Migration)

[2021] AATA 4354

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          

LEGISLATION
Migration Act 1958, ss 65, 359, 379
Migration Regulations 1994, r 1.03; Schedule 2 cl 500.211, 500.212

CASES
Bala v MIBP [2019] FCA 600
Hasran v MIAC [2010] FCAFC 40
Nguyen v MIBP [2013] FCCA 1864
Singh v MIBP [2018] FCCA 3423

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 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).

2. 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.

3. 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 Diploma of Community services on 10 October 2021. She is currently studying for her Bachelor of Community services which is due to be completed on 31 May 2024. She is not enrolled in any future study.

4. On 8 July 2021, the Tribunal wrote to Ms Silwal pursuant to s.359(2) of the Act, inviting her to provide information in writing about her enrolment (cl.500.211) and whether she is a genuine applicant for entry and stay as a student (cl.500.212). The invitation was sent to Ms Silwal’s authorised recipient in accordance with s.379G of the Act and advised that if the information was not provided in writing within the prescribed period, being by 22 July 2021, or an extension of time was not given, the Tribunal may make a decision on the review without taking further steps to obtain the information and Ms Silwal would lose any entitlement she had under the Act to a Tribunal hearing. On 22 July 2021, Ms Silwal requested an extension of time in which to provide the information. The Tribunal granted her an extension until 19 August 2021. On 19 August 2021, Ms Silwal sent a response to the Tribunal’s s.359(2) letter. In that response she consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), Ms Silwal is no longer entitled to appear before it to give evidence and present arguments relating to the issues in her case.[1] This matter has, therefore, been determined on the evidence available to the Tribunal, including the information provided in her 19 August response to its s.359(2) letter.

   [1] Hasran v MIAC [2010] FCAFC 40.

5. 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

6. 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)

7. 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.

8. 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.

9. 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.

10. 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).

11. 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)

12. Clause 500.212(a) requires that:

    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; …

    Ms Silwal is not a minor so cl.500.212(a)(iii) is not relevant to this case.

13. In considering whether an 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. The 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 his/her home country, his/her 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; and

    ·     any other relevant information provided by the applicant, or information otherwise available to the Tribunal, including information that may be either beneficial or unfavourable to the applicant.

    The factors specified in the Direction should not be used as a ‘checklist’ but rather are intended to guide the Tribunal when considering an applicant’s circumstances as a whole and reaching its decision about whether he/she satisfies the genuine temporary entrant criterion.[2] The factors are all matters for the Tribunal ‘to think about and weigh up’.[3]

    [2] Direction No. 69, Part 2 at [1]. See Nguyen v MIBP [2013] FCCA 1864, Singh v MIBP [2018] FCCA 3423.

    [3] Singh v MIBP [2018] FCCA 3423 at [17] and [18].

14. Not all factors set out in Direction No. 69 are relevant to the circumstances of this case.[4]

    [4] Bala v MIBP [2019] FCA 600 at [17]–[18] where the Court found that even though certain factors included in Direction No. 69 were not specifically referred to by the Tribunal it did not follow that they were not considered.

    Ms Silwal’s Circumstances

15. Direction No. 69 provides that regard should be had to Ms Silwal’s circumstances in Nepal and her potential circumstances in Australia. The Tribunal should also have regard to the value of her course to Ms Silwal’s future. According to the Direction, weight should be placed on any circumstances that indicate that the Student visa is intended primarily to maintain residency in Australia.

    Circumstances in Ms Silwal’s Home Country

16. In considering Ms Silwal’s circumstances in her home country, whether she has reasonable reasons for not undertaking the study in Nepal, the extent of her personal ties to her home country, and whether her circumstances serve as a significant incentive to return are all relevant. Any economic circumstances that would present an incentive for Ms Silwal not to return to Nepal, including consideration of those circumstances relative to Nepal and to Australia, and whether there are military service commitments or political and civil unrest in Nepal that might motivate her not to return are also identified in Direction No. 69. It is open to the Tribunal to consider Ms Silwal’s circumstances as compared to others in Nepal.

17. The Tribunal accepts Ms Silwal’s evidence that the community services courses she is undertaking in Australia are not available in Nepal.

18. Except for her younger brother who lives in the United States, Ms Silwal’s family all reside in Nepal. She claims in her statements to own property located in Chandrapur-2 in Nepal, but the only evidence of property ownership located in Chandrapur-2 is in her father’s name. Nonetheless, although she has no major assets in Nepal, she continues to be supported financially by her parents who, together with all their assets, are in Nepal. Therefore, the Tribunal views this as an important tie to her home country that is a meaningful incentive to return after her study.

19. Ms Silwal often talks to her family on the telephone and over Facebook. They are her psychological and emotional support system, and she attributes the person she is to their love and support. While she has not returned to Nepal to visit her family since arriving in Australia, the Tribunal notes that this would not have been possible due to the current novel corona virus, SARS-CoV-2 (Covid-19), pandemic. Ms Silwal also has told the Tribunal that she has a responsibility to return and care for her parents. In her home country, Ms Silwal participates in programs run by the Nepal Red Cross Society (NRCS) and other local health-based programs like blood donation and drug awareness. She aims to be a role model in her community and help them through knowledge she will gain in Australia. Her parents are educated and well-off, with her father being a businessman involved in the sale of gold. She claims in her statement that they are already using their influence to help secure her a community services position in Nepal. The Tribunal accepts that she has significant personal ties to her home country which are an incentive to return.

20. There is nothing before the Tribunal to indicate economic circumstances that would be a significant incentive for Ms Silwal not to return to Nepal. It accepts her evidence that her family is well-off and influential, and upon her return her new qualifications will give her the opportunity to make an extremely good living in any number of community services fields. Comparison of the standard of living this will afford her in Nepal to community services jobs in Australia does not raise a significant incentive for Ms Silwal not to return home.

21. Military service in Nepal is voluntary so Ms Silwal does not have any military service commitments at home and, while Nepal has in its recent past experienced some political and civil unrest, she has expressly stated in her response to the Tribunal’s s.359(2) letter that she does not fear returning to Nepal for any reason. There is no evidence before the Tribunal to suggest that current circumstances exist that would result in Ms Silwal choosing to remain in Australia indefinitely.

    Potential Circumstances in Australia

22. When considering Ms Silwal’s potential circumstances in Australia, her ties with Australia (both community and family) that might act as an incentive to remain are relevant. Any evidence that the student visa program is being used to circumvent the intentions of the migration program or being used to maintain ongoing residence, and whether she has entered into a contrived relationship to facilitate a successful outcome should also be considered. Ms Silwal’s knowledge of living in Australia, intended course of study, and education provider are all identified in Direction No. 69.

23. There is no evidence that Ms Silwal has any particular ties with Australia. She has no family in Australia and has only been in Australia for a comparatively short period of time, much of it during the Covid-19 pandemic. There is nothing before the Tribunal to indicate that her links to the community would be anything but limited. She has been in touch with NRNA Nepalese youth teams about programs to assist mental health issues attributable to Covid-19, but otherwise there is nothing about her engagement in Australia that would provide a significant draw for her to stay. Nor does anything before the Tribunal indicate that in this case the student visa program is being used to circumvent the intentions of Australia’s migration program or that Ms Silwal is attempting to maintain ongoing residence in Australia.

24. Ms Silwal explained in her statement why she chose to study community services, why she chose to study in Australia, why she chose her education provider, and provided information about her course of study, including her future career plans. Ms Silwal wishes to study in an English-speaking environment and obtain an internationally recognised qualification. It is her intention to return to Nepal and work as a community services worker. She enjoys helping people and was interested in pursuing a career providing care, support and counselling to people dealing with issues like aged and disability care, substance abuse, and other areas of rehabilitation and human relations. Ms Silwal gained nursing qualifications in Nepal which gave her practical skill in caring for patients in a clinical environment. Her previous nursing qualification will compliment the skills she will gain from her Australian study, but it is clear from the core units in her diploma course that her areas of interest relate more to community casework and organisation than nursing.

25. While in Australia working on a film project as a makeup artist, Ms Silwal took the opportunity to explore possible study in Australia in her more preferred health care discipline because it would provide her with an internationally recognised qualification and experience. Study in Australia will also give her experience with multiculturalism, an indirect benefit to her future career path. Ms Silwal initially picked AHMI because its Community Services Diploma was recognised and designed by industry professionals. Currently, however, she is studying at Scott’s College where she enrolled on 2 August 2021. Ms Silwal says she chose to continue her education in community services because it will further increase both her theoretical and practical skill levels and Scott’s College includes fully equipped labs, field work, and hospital ward experience. She enrolled at Scott’s College because it is a fully accredited Australian higher education degree that will give her credit exemptions for her diploma. She felt it was suitable because she met the entry requirements, it had the course she wanted, and she can afford the fees.

26. The Tribunal finds that Ms Silwal has demonstrated a level of knowledge about her study that would be expected of a genuine student. Taking into consideration Ms Silwal’s previous study, her reasons for her Australian study, and her intentions once she completes her course the Tribunal is satisfied that she is genuinely seeking to undertake the proposed course for the reasons declared and is not merely seeking to gain residency in Australia.

    Value of the Course to Ms Silwal’s Future

27. In considering the value of the course to Ms Silwal’s future, whether the course is consistent with her current level of education and will assist her to obtain employment or improve employment prospects in Nepal or a third country, and the relevance of the course to her proposed future employment in Nepal are pertinent. Direction No. 69 also refers to the remuneration Ms Silwal can expect in Nepal or a third country, including in comparison to Australia, using the qualifications gained from the course of study.

28. Ms Silwal completed a Diploma in Nursing from HAMS Nursing College in Nepal in 2016, but after three months at Middhat Hospital working as a registered nurse she decided not to pursue a nursing career because she discovered she did not enjoy the work. Instead she completed a training course in makeup at Mishus Fashion and Design and went on to become a makeup artist from 2017 to 2019. She arrived in Australia on a Temporary Activities visa in 2019 to work as a makeup artist on a film project. While in Australia she determined that she needed further education to gain the skills and knowledge necessary to pursue the career in the community services sector that is her real interest. These courses were not available to her in Nepal. After consulting with her elders and some friends they encouraged her to pursue the more community-based courses.

29. Community services includes a wide range of job sectors including disability, child protection, drug and alcohol, family services, pastoral care, senior and youth care, social welfare, youth and family support, juvenile justice, early intervention, and community health programs. Previously Ms Silwal enrolled in a diploma course which the Tribunal accepts, given her Nepalese qualifications, would be a prerequisite for her to be accepted into her bachelor program. It accepts that the courses she has undertaken and is undertaking in Australia are regarded as high quality in Nepal. It is clear these courses will assist her future employment opportunities in her home country, having regard to the potential job opportunities she has continuously foreshadowed in her evidence.

1. Ms Silwal’s community services qualifications will provide her with higher-level skills, more theoretical and management (compared to clinical) expertise, and the ability to implement service programs while analysing the sociological impacts on her clients. According to Ms Silwal’s statements her courses will prepare her for ethical, competent, culturally relevant generalist community services practice and equip her with the skills for continued professional development in the health sector. Her bachelor’s degree will equip her with the skills and knowledge to pursue occupational roles such as coordinator, counsellor or manager in the community services sector.

2. That bachelor’s degree will assist Ms Silwal to obtain employment, including improved employment to her nursing and makeup qualifications, because Australia’s qualifications and education system are recognised in Nepal, and internationally, as good quality. A bachelor’s degree (as compared to only a diploma) is extremely important in order to be able to gain employment in some sectors in Nepal, including community services. Since Nepal does not offer a reputable Bachelor of Community services and the degree will be completed in English her Australian study will make her highly desirable in a number of health and community services sectors in Nepal. Ms Silwal will gain the latest information, research and strategies, as well as the use of new technologies that she can take back to her home country to help her community.

3. There are a large number of possible work environments in Nepal where Ms Silwal can use her qualifications and be well sought after, including both local and international non-government organisations, commercial entities, and government or government-funded organisations. She wants to return to Nepal to use her knowledge and experience to take advantage of the unrealised opportunities she sees in her home country and raise the living standards of its less-advantaged people. Her courses are directly relevant to this future employment since after finishing her study in Australia, she will return to Nepal and work as a community services worker.

4. There are a large number of organisations in Nepal addressing aged care, disability services, indigenous and multicultural support, asylum seekers and refugee services, mental health and counselling, child protection, family services, housing and community development, schools, emergency relief, and youth justice looking to hire qualified candidates as officers and co-coordinators to implement their programs. She is particularly interested in working in child protection and would like to work for organisations like Child Protection Centers and Services, Child NGO Federation of Nepal, Namaste Children Nepal, etc. She will also be qualified to gain employment as a child specialist in international organisations like UNICEF or Action Aid Nepal, in the public sector, or in more general NGOs like Nepal Red Cross Society, RTI Nepal, UNICEF Nepal, and USAID Nepal.

5. According to the Average Salary Survey website, the average national wage in Nepal is NPR1,276,520 per annum, with the median salary being NPR811,888 per year[5] or NPR67,657 (AUD749.65) per month. Ms Silwal claims job applicants with a Bachelor’s Degree in Community services are in high demand and earn between AUD1000 and AUD2000 per month depending on the employer. This is above the typical wage, in keeping with a skilled vocation like a community services worker or manager with a bachelor’s degree from Australia who is a qualified nurse. Therefore, the qualifications gained from her course of study will certainly impact positively on Ms Silwal’s remuneration prospects in Nepal and afford her a higher standard of living than she will likely achieve in the community services industry in Australia.

   [5]

6. Ms Silwal has been continuously enrolled in a full-time course of study since applying for the Student visa and has successfully completing her Diploma in Community services. The Tribunal accepts that her continuous enrolment and successful completion of a foundation course is indicative of a genuine student. The Tribunal accepts that the courses she has and is studying are progressive and consistent with her current level of education. The Tribunal also accepts her evidence as to the value of the courses to her future, particularly since it is complimentary to her Nepalese nursing qualification and will provide her with better employment prospects on return as described in her reply to the s.359(2) letter.

7. 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

8. 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

9. 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.

10. 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.

11. 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.

12. Ms Silwal has not applied for any visas other than her Student visa since entering Australia.

13. There is no evidence that she has applied for a visa in any other country.

    Previous Travel History

14. When considering Ms Silwal’s previous travel history, whether she has previously travelled to Australia and her travel to other countries are relevant. If she previously travelled to Australia, consideration should be given to her compliance with the conditions of her visa, if she left before the visa ceased and, if not, why not (for instance circumstances beyond her control, etc.), and whether any previous visa was cancelled or considered for cancellation. The amount of time spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence are identified in Direction No. 69, including whether Ms Silwal has undertaken a series of short inexpensive courses or has been onshore for some time without successfully completing a qualification. Factors such as whether Ms Silwal has travelled to countries other than Australia and complied with the migration laws in those countries together with the reason for any non-compliance should also be considered.

15. Ms Silwal has not previously travelled to Australia and there is no evidence that she has travelled to any other countries other than her current trip to Australia.

16. There is no evidence to suggest that Ms Silwal has failed to comply with immigration laws in other countries or in Australia. Other than the Student visa under review she has never had a visa refused and she has never had a visa cancelled. Ms Silwal first arrived in Australia in May 2019 on a Temporary Activities visa, a criterion for which is that she intended genuinely to stay temporarily in Australia, and instead of departing Australia she applied for the Student visa that is the subject of this review. However, that was not a breach of the conditions of her visa of entry and at no time did she become an unlawful non-citizen.

17. There is no evidence that Ms Silwal has not complied with the migration laws in any other country or breached the conditions of a visa for any other country.

    Where the Applicant is a Minor

18. Direction No. 69 provides guidance where the applicant for the visa is a minor. Because Ms Silwal is not a minor this factor is not relevant to the Tribunal’s considerations.

    Other Relevant Information

19. Direction No. 69 includes provision for the Tribunal to have regard to any other ‘relevant’ information provided by Ms Silwal or otherwise available to it, which includes information that may be either beneficial or unfavourable to Ms Silwal. The Tribunal has not identified any further information that would be relevant to its considerations.

    Findings

20. While the Tribunal has concerns that she arrived on a Temporary Activities visa and changed her plans to study, it is persuaded that Ms Silwal is a genuine student and was a genuine temporary entrant to Australia. She has repeatedly indicated that she will return to Nepal on completion of her study. The Tribunal accepts her reasons why she wishes to return home as credible including returning to her family and helping her community. The Tribunal notes no evidence has been presented that Ms Silwal will require any additional study in Australia for her future career aims following the completion of her current course in 2024. Should she choose to enrol in another course of study and lodge a further application for a Student visa this would raise some concerns.

21. The Tribunal is satisfied from Ms Silwal’s evidence that she is credible that she saw an opportunity to study a course in Australia that would be respected in Nepal and satisfies her need to help people. The Tribunal views her positive study record as persuasive that she is a genuine student and is a genuine temporary entrant to Australia.

22. On the basis of the above, and having considered Ms Silwal’s circumstances and immigration history, the Tribunal is satisfied that she intends genuinely to stay in Australia temporarily. Accordingly, Ms Silwal meets cl.500.212(a).

23. 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

24. 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 Hyland
    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;

    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.

    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.