Thapa (Migration)

Thapa (Migration) [2019] AATA 5761 (8 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Denish Thapa
CASE NUMBER:  1723965
HOME AFFAIRS REFERENCE(S):          BCC2017/1378701
MEMBER:Wendy Banfield
DATE:8 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 08 December 2019 at 10:45pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – family pressures – health issues – lack of ties to home country – use of visa to extend stay – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.312

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 April 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
Background
The applicant is a citizen of Nepal and is currently 27 years old. He came to Australia on 15 August 2014 as the holder of a Subclass 417 Working Holiday visa and on 17 July 2015 he was granted a Student visa. While holding a Student visa, the applicant was enrolled to study Certificate and Diploma courses. He completed a Certificate III in Business but his enrolment in a Certificate IV and Diploma was cancelled. The applicant and the primary visa holder were married on 23 March 2017 and applied for the visa which is the subject of this review less than one month later.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.
Prior to the hearing the applicant submitted the following evidence:
·     Primary visa holder’s COE;
·     Applicant’s statement (undated);
·     Evidence of the applicant’s schooling in Nepal;
·     Passport information for the applicant and the primary visa holder;
·     Marriage Certificate dated 23 March 2017;
·     Evidence of BUPA Overseas Student Health Cover;
·     Residential Bond receipt in the name of the applicant and primary visa holder;
·     Bank statements for the applicant and primary visa holder indicating the same residential address;
·     Photos;
·     Medical Certificate dated 5 September 2016 in the name of the applicant;
·     Medical Imaging report dated 17 February 2015 in the name of the applicant;
·     Applicant’s post-operative instructions following surgery dated 16 March 2015;
·     Evidence of the applicant’s enrolment to study in Australia;
·     Copy of the applicant’s Student visa.
The applicant provided evidence to the Department which has been taken into account in this decision. The evidence was an Application for a Student (Subsequent Entrant) Visa; applicant’s statements in support of the application; photos; evidence of travel to Hong Kong; financial evidence.
The applicant appeared before the Tribunal on 16 September 2019 to give evidence and present arguments.
The hearing
The applicant advised when he first came to Australia he held a Working Holiday visa but while employed he suffered a ligament injury. He said his plan had been to work and travel and he hoped to extend his visa, however, it did not go according to plan. The applicant advised he had surgery and was therefore not fit to work on a farm as required by the work visa. He said he was able to stay with the same employer following a request to the Department and he then decided to apply to study. He is now applying to be included on his wife’s Student visa as a subsequent entrant.
The applicant said he does not have family in Nepal and he had been living in Hong Kong where his parents are and he has returned once since arriving in Australia. He said he was brought up and educated in Nepal. The applicant gave the date of his marriage as 23 March 2017. When asked when he met his wife, he said it was September 2014 while in Australia and they had known each other for three years before they married. The primary visa holder is studying Nursing and holds a Student visa that is valid until 2021.
The applicant had enrolled in vocational Business courses but had only completed a Certificate III. He was asked about his failure to complete further courses in Business and the reason he had not been enrolled while holding a Student visa. He said he and his wife had married but at the time his wife had been under pressure to marry within the same “caste and race”. It was submitted the applicant and his spouse are from different races and religions, she is Buddhist while he is Hindu and her family wanted her to marry a person she did not know. He said it was difficult when they were in a relationship. In addition, he had ligament problems where he had had surgery before. The applicant stated for these reasons, his health and his wife’s family pressuring her, he was “totally messed up” and could not attend classes. The Tribunal referred the applicant to the Department’s decision where it was noted he did not study during part of 2015 through to 2017 and apart from leave for his ligament issue, he did not advise his education provider. He was asked why he did not apply for compassionate leave. According to the applicant, he had a medical condition but was not aware of it. When asked to explain he referred again to his knee problem that restricted his ability to undertake daily tasks, as well as family pressure.
Regarding plans for the future, the applicant advised he wants to stay in Australia with his wife and then they will go to Hong Kong or the UK where he said he has citizenship. The Tribunal asked the applicant why he had not studied in the UK and he said he had not thought Australia would be as good, but reiterated he would be going back to the UK. The applicant said his family are aware of his marriage but his wife’s parents do not. This is because they would want her to marry someone else. The applicant advised he works in retail while his wife works for a cleaning company.
The applicant was asked about his knee injury and said he had medical treatment followed by bed rest for three months. He claimed it took 9 months to fully recover and was still causing problems. In regards to career plans, the applicant said his wife will find a job as a nurse and he intends to open a café or restaurant. The applicant advised he does not have any property or assets outside of Australia. He said they are not planning to return to Nepal because his wife’s parents would not support their marriage.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the criteria of a genuine temporary entrant as part of the family unit of a person who holds a Student visa.
Clause 500.312 requires as follows:
The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.312(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal considered the applicant’s circumstances in their home country. The applicant advised he no longer has family in Nepal and his immediate family members are in Hong Kong. He has a UK passport and claimed he intends to live there in future. He does not have any property or assets outside of Australia and did not provide evidence of any economic or business ties in Nepal, Hong Kong or the UK. According to the applicant neither he nor his wife plan to return to Nepal because her family are not aware of, and would not support their marriage and his immediate family are in Hong Kong. According to the evidence the applicant has returned to Hong Kong only once for approximately 10 days since arriving in Australia in 2014. Based on the evidence and submissions provided, the Tribunal is not satisfied the applicant has ongoing ties to his home country or any other that would act as an incentive for him to depart Australia after his spouse completes her studies.
In Australia the applicant first arrived as the holder of a Subclass 417 Working Holiday visa. He said he planned to apply for a further visa but was not able to undertake farm work as would have been required due to an injury. Instead the applicant applied for a Student visa and was enrolled to study a Certificate III, IV and Diploma of Business. The applicant only completed the Certificate III qualification and did not study at all for an extended period, from December 2015 to April 2017. The applicant explained he had suffered a ligament injury for which he had surgery, however it reoccurred and caused ongoing problems. In addition the applicant said he had met his wife but their relationship was not approved of by her family, and as a result he was under a lot of strain and could not study. Based on the medical evidence provided, the Tribunal accepts the applicant had an injury for which he underwent surgery in 2015 and received treatment but is not satisfied it was the reason for his failure to study for more than 12 months which occurred more than a year after. The applicant did not provide any evidence to support his claims of issues with, or pressure from his wife’s family. As the primary visa holder did not attend the hearing the Tribunal was unable to ask her about the matter. The applicant did not provide evidence of a mental health condition and the Tribunal does not accept the applicant’s bare assertions that this contributed to his inability to study.
The applicant’s immigration history refers to both his visa and travel history. The applicant first arrived in Australia in 2014 holding a Subclass 417 Working Holiday visa and had planned to extend his stay on the same basis. When he was unable to undertake the required farm work due to an injury the applicant applied for a Student visa. The applicant did not comply with the terms of his Student visa by failing to study for an extended period and instead applied to be a dependent on his wife’s Student visa. Since arriving in Australia the applicant has departed once, from 30 July 2017 to 10 August 2017. The Tribunal is not satisfied the applicant has applied for the visa for genuine purposes rather he appears to be using the Student visa process to extend his stay in Australia.
Regarding the value of the courses studied to the applicant’s future, he has stated that he plans to open a restaurant or café in the UK after his wife completes her Nursing studies in Australia. Although the applicant has a UK passport, there is no evidence he has the experience or the means to open a business there, particularly since he only completed one Certificate III course in Business while holding a Student visa in Australia.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant in deciding whether the genuine temporary entrant criteria has been met. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant does not meet cl.500.312.
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.312.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Wendy Banfield
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.

[2019] AATA 5761

8 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice