Silwal (Migration)

[2021] AATA 1239

Silwal (Migration) [2021] AATA 1239 (29 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr. Dinesh Silwal
Mrs. Yurika Kajima

CASE NUMBER:  1932356

HOME AFFAIRS REFERENCE(S):          BCC2019/3403174

MEMBER:P. Adami

DATE:29 April 2021

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

·cl.500.311 of Schedule 2 to the Regulations.

Statement made on 29 April 2021 at 3:21pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – consent to decision without hearing – visa, study and work history – family ties and return travel – clearly stated long-term career goals in home country – secondary applicant already departed Australia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(b), (3)

Migration Regulations 1994 (Cth), Schedule 2, cls 500.212(a), 500.311

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 28 October 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 July 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the primary applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the primary applicant genuinely intends to stay in Australia temporarily as a full time student.

4. On 15 January 2021, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act, inviting the applicants to provide further information to the Tribunal, including information as to the primary applicant’s enrolment and being a genuine applicant for entry and stay as a student. The invitation was sent to the primary review applicant, at the nominated contact details provided by the applicants in their 14 November 2019 ‘Application for review’.

5. On 26 January 2021, the applicants filed with the Tribunal a completed Request for Student Visa Information together with other evidence in support. In the completed Request for Student Visa Information, the primary applicant consented to the Tribunal deciding the review without a hearing.

6. The Tribunal is satisfied that the necessary consent has been given under s360(2)(b) of the Act, and that pursuant to s360(3), the review applicant is no longer entitled to appear before it. The matter has therefore been determined on the evidence available to the Tribunal.

7. It is appropriate to note that a decision maker is not required to make the applicants' case. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of 'onus of proof' is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicants, in as much detail as is necessary to enable the examiner to establish the relevant facts.

8. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicants to the Department.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

12. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

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

13. 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 primary applicant’s circumstances as a whole, in reaching a finding about whether the primary applicant satisfies the genuine temporary entrant criterion.

14. The primary applicant is a 33 year old Nepalese male who travelled to Australia in August 2013. The secondary applicant is the Japanese wife of the primary applicant, having married in Nepal in February 2013. On 07 July 2019, the primary applicant applied for a Student visa to study a Diploma of Leadership and Management. On 28 October 2019, a delegate of the Minister refused the primary applicant’s application for a Student visa. It is the delegate’s 28 October 2019 refusal which gives rise to the review application now before the Tribunal. A copy of the delegate’s decision was provided by the applicants to the Tribunal at the time of their application for review.

15. The Tribunal has read and had regard to the documentation provided by the applicants to the Department. The Tribunal has also read and had regard to the documentation provided by the applicants to the Tribunal. This in part includes; the delegate’s Decision Record dated 28 October 2019; primary applicant’s undated GTE Statement filed with the Department; certificate of marriage evidencing the applicants’ marriage in February 2013; Confirmation of Enrolment (COE) for the Diploma of Hospitality Management at Global College Australasia with a course start date of 05 April 2021 and a course end date of 02 October 2021.

16. On 01 April 2021, the Tribunal obtained a Provider Registration and International Student Management System (PRISMS) search to confirm the applicant was still enrolled as proposed. The PRISMS search indicates that the primary applicant completed the Certificate IV in Commercial Cookery, however the primary applicant did not study the Diploma of Leadership and Management as proposed at the time of the delegate’s decision. The applicant explains in his completed Request for Student Visa Information that, “I decided to study commercial cookery & hospitality management as it is directly contributes to my future career plan in my home country to work as an executive chef and eventually opening my own hospitality outlet.” The PRISMS search also revealed that the primary applicant held a COE a Diploma of Hospitality Management which he expects to complete in October 2021.

17. The primary applicant arrived in Australia having worked for 1 year as a cook, then completed a 4 month certificate in travel, and then again worked as a cook for 2 years, until July 2013. After arriving in Australia in August 2013, the primary applicant has held 2 subclass Higher Education Sector subclass 573 visas and a Temporary (Skilled) Work VC 485 visa. The delegate concluded that the primary applicant had worked in Australia and had then sought to study in order to stay longer in Australia.

18. The primary applicant states in his completed Request for Student Visa Information that, “I have always been very clear about my long-term career goals that I will be involved in hospitality industry. After the completion of the course that I am undertaking at Global College Australasia, I will have very valuable Australian qualifications which will help me to make a successful professional career in Nepal as well as to establish my own hospitality outlet in the long run. I already have years of work experience in the industry and by holding the official qualification which is internationally recognized, I will be in a very strong position in my future career.” [Original] The primary applicant also states that holding an Australia qualification will result in him earning a higher salary.

19. The primary applicant states in his completed Request for Student Visa Information, “I was always very passionate about cooking since I was very young which is why I always wanted to get involved in hospitality and tourism industry. I had been working as a cook/chef for many years. Though, I had strong exposure in hospitality sector, I did not possess a recognised qualification which adds high value to someone's career.” [Original]

20. The Tribunal places significant weight in the stated and clear intention of the primary applicant to return home at the end of the Diploma of Hospitality Management course in October 2021. The applicant states in his completed Request for Student Visa Information, “My wife is now back to Japan to pursue her professional career there and I will be joining her soon after I complete my qualifications in Australia. We eventually plan to settle in Nepal after I attain the Australian qualification which will help me to make a successful career in Nepal and my wife will be working in some international projects.” The primary applicant states in his completed Request for Student Visa Information that he last saw his wife in December 2020.

21. The Tribunal is mindful of that the primary applicant has worked whilst living in Australia and he is now studying in Australia. The primary applicant will have lived in Australia since August 2013 and lived in Australia for 8 years when the primary applicant expects to finish his studies. Without the clearly stated intention to depart Australia, the Tribunal considers it would not have been minded remitting the application back to the Department for its further consideration. 

22. The Tribunal considers there is some value to the primary applicant’s career in completing the currently enrolled course and then departing Australia to carry into effect his career plan. The applicant has obtained work experience in Australia as a chef and completed the Certificate IV in Commercial Cookery in March 2021, having transferred from studying the Certificate III in Commercial Cookery. The Tribunal considers the primary applicant’s clear desire to depart Australia demonstrates that he has a genuine intention to study in Australia temporarily.

23. There is no evidence before the Tribunal in relation to the primary applicant’s circumstances in his home country relative to the circumstances of others there.

24. The primary applicant states in his completed Request for Student Visa Information that his wife has returned to Japan to pursue her career, and that his parents and bother live in Nepal. The primary applicant states that he speaks to his wife daily using phone technology, and his family 4-5 times a week also using phone technology. The Tribunal notes that the primary applicant lists that he has returned home to Nepal 3 times since arriving in August 2013. The applicant has travelled in December 2015, 2017 and 2018 for what appears to be approximately 1 month on each occasion.  The Tribunal considers that the secondary applicant is a tie that acts as an incentive to depart Australia, and together with the primary applicant’s clear and repeated intention to return home to his wife in Japan before then returning to Nepal after completing the Diploma of Hospitality Management course, which is expected in October 2021; the Tribunal is minded to conclude the applicant is a genuine temporary entrant.

25. The primary applicant lists in his completed Request for Student Visa Information that the property and other significant assets owned by him include a car in Australia worth approximately $4,000, and land and building worth approximately $800,000 in Nepal and a $500,000 apartment in Japan. The Tribunal does not consider this property acts as a significant incentive to return home given land can be leased or sold, and readily turned into cash.

26. There is no evidence that the primary applicant has significant community ties such that they would present as a strong incentive to remain in Australia or return to Nepal. On balance, the Tribunal does not consider this factor weighs either for or against the primary applicant being a genuine temporary entrant. The primary applicant does not have any military service commitments that would serve as a significant incentive not to return home. Further, the primary applicant does not have any political or civil unrest in his home country that may induce him to apply for a student visa to obtain entry into Australia for the purposes of remaining indefinitely.

27. The primary applicant has not applied for a visa where a decision on that application has not yet been made. There is no evidence that the primary applicant has held a visa that was cancelled or considered for cancellation. The primary applicant lists that he was denied a visa to Australia in 2008, but the Tribunal does not place weight on this given he has been subsequently granted visa in Australia. The primary applicant also lists that he was refused a visa to Canada in 2019, however the Tribunal is minded to allow the primary applicant to complete the Diploma of Hospitality Management and thereafter depart Australia in an orderly manner.

28. The Tribunal considers that the delegate's concerns about whether the primary applicant met the genuine entrant criterion were fair and justified. However, after careful consideration and it being finely balanced, the Tribunal is satisfied that the primary applicant intends genuinely to stay in Australia temporarily. Accordingly, the primary applicant meets cl.500.212(a).

29. For the avoidance of doubt, this matter is to be remitted to the Department with a Direction that the primary applicant meets the criteria on the basis that he expects to complete his Diploma of Hospitality Management course in October 2021; and that he intends to return to his wife in Japan upon completing the course and thereafter carry into effect his career plans. There is no evidence before the Tribunal that the applicants intend to apply for any further visa of any nature, or seek to extend their stay in Australia, either separately or as a couple.

30. 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.

31. As the Tribunal has found that the primary applicant meets the criterion for the grant of a student visa, it must remit the decision under review that the second named applicant meets cl.500.311 as she is a member of the family unit of a person who satisfies the primary criteria in cl.500.212. The secondary applicant did not make any claims or provide evidence that they satisfy the primary criteria.

    DECISION

32. The Tribunal remits the application for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named and second named applicant, respectively, meet the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations

    ·cl.500.311 of Schedule 2 to the Regulations

    P. Adami

    
    

    Member

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.