Tiwari (Migration)

Case [2022] AATA 1889

Tiwari (Migration) [2022] AATA 1889 (31 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Shandip Tiwari

REPRESENTATIVE:  Mr Lok Raj Subedi (MARN: 1467976)

CASE NUMBER:  2004534

HOME AFFAIRS REFERENCE(S):          BCC2019/4853269

MEMBER:T. Quinn

DATE:31 January 2022

PLACE OF DECISION:  Melbourne

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:

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

Statement made on 31 January 2022 at 2:07pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – genuine temporary entrant – Direction No. 69 – academic progress – changes to study and career pathways – economic circumstances – immigration history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

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 (‘the delegate’) on 18 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

  2. The applicant applied for the visa on 27 September 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

  3. On 18 February 2020, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

  4. On 6 March 2020, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

  5. Approximately 23 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 17 September 2021, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting…

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Tiwari (Migration) [2022] AATA 1889
Case
[2022] AATA 1889
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa made by a Nepalese citizen. The applicant sought review of a delegate's decision to refuse the visa. The Tribunal was required to assess whether the applicant met the genuine temporary entrant criterion, as guided by Direction No. 69.

The core legal issue before the Tribunal was the proper application of Direction No. 69, which outlines factors to consider when assessing whether an applicant genuinely intends to stay in Australia temporarily. This involved determining the relevance and weight of various factors, including the applicant's circumstances in their home country and in Australia, the value of the proposed course of study to the applicant's future, and the applicant's immigration history. The Tribunal also had to consider whether any inconsistencies in the applicant's provided information warranted further scrutiny.

The Tribunal noted that while Direction No. 69 provides lawful guidance, it is not a checklist and decision-makers must reach their own conclusions based on the evidence. The Tribunal found significant inconsistencies between the delegate's assessment and the applicant's evidence regarding his prior education and employment history. Preferring the applicant's evidence in this regard, the Tribunal concluded that the application should be remitted to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 500.212(a) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[5] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines. [5]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a 37-year-old male Nepalese citizen who first arrived in Australia on 5 July 2019on a visitor visa.[6] The delegate’s decision states that the applicant’s highest level of education prior to coming to Australia was secondary school. However, the applicant’s response to the s359(2) letter indicates he completed a Proficiency Certificate in Humanities in 2009 and a Food Production Training course in 2017 – he has provided corroborating certificates for same to the Tribunal. The delegate’s decision states that the applicant has not been employed prior to his arrival in Australia. The applicant’s response to the s359(2) letter, however, states that he worked at a savings and cooperative organisation from September 2013-January 2017 earning AUD2,500 equivalent per annum and that he worked as a part time cook from May 2017-June 2019 earning AUD3,600 per annum equivalent.[7] The applicant has provided a letter from his employer in relation to the latter employment corroborating same.[8] The Tribunal is puzzled by these inconsistencies and, given the evidence provided in support, prefers to the applicant’s evidence in relation to his history prior to arrival in Australia. [6] See delegate’s decision and applicant’s response to the s359(2) letter.[7]See applicant’s response to the s359(2) letter.[8]See applicant’s response to the s359(2) letter.

Decision

Reasons for decision

Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.DECISION The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:·Clause 500.212(a) of Schedule 2 to the Regulations.MemberT. QuinnAttachment – Direction No.69DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS(Section 499)I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).Dated: 18 April 2016Peter DuttonMinister for Immigration and Border ProtectionNote: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.Part 1 of Direction No. 69 - PreliminaryName of DirectionThis Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.It may be cited as Direction No. 69.CommencementThis Direction commences on 1 July 2016.InterpretationAct means the Migration Act 1958.Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.Regulations mean the Migration Regulations 1994.Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.Spouse has the same meaning as the definition of the term in section 5F of the Act.Student visa means a Subclass 500 (Student) visaStudent Guardian visa means a Subclass 590 (Student Guardian) visa.ApplicationThis Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.PreambleThe Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:a.the applicant’s circumstances; andb.the applicant’s immigration history; andc.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; andd.any other relevant matter.This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarilyPart 2 of Direction No. 69 - DirectionsAssessing the genuine temporary entrant criterion1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:a.considering the applicant against all factors specified in this Direction; andb.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.4.Circumstances where further scrutiny may be appropriate include but are not limited to:a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;b.the applicant or a relative of the applicant has an immigration history of reasonable concern;c.the applicant intends to study in a field unrelated to their previous studies or employment; andd.apparent inconsistencies in information provided by the applicant in their Student visa application.5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.The applicant’s circumstances6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.The applicant’s circumstances in their home country9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; ande.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.The applicant’s potential circumstances in Australia11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; ande.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.Value of the course to the applicant’s future12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; andb.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; andc.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.The applicant's immigration history13.An applicant’s immigration history refers both to their visa and travel history.14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:a.Previous visa applications for Australia or other countries, including:i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; andii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.b.Previous travels to Australia or other countries, including:i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; andiv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-complianceIf the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.Any other relevant matters16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

Ratio Decidendi

Legal Principle Established

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