Upadhyay (Migration)

Upadhyay (Migration) [2020] AATA 6103 (15 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bidur Upadhyay
CASE NUMBER:  1918818
HOME AFFAIRS REFERENCE(S):          BCC2019/2606590
MEMBER:S.Witts
DATE:15 December 2020
PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 15 December 2020 at 1:04pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met–personal ties in Australia – no strong incentive to return to her home country–use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212
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 Home Affairs on 24 June 2019 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 18 May 2019. 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.
The applicant appeared before the Tribunal on 15 December 2020 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
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 genuinely intends to stay in Australia temporarily.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
At the hearing the Tribunal had a discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.
According to the delegate’s decision record provided to the Tribunal by the applicant dated 24 June 2019, the delegate refused the applicant’s application for a student visa on the basis that the delegate was not satisfied that the applicant was a genuine temporary entrant.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing.
In particular the Tribunal has considered the applicant’s response to a request for student visa information under s.359(2) of the Act.
In this response the applicant stated that he first arrived in Australia from his home country of Nepal in March 2019 and has not since returned to his home country. He stated that he finished his year 12 education in 1996 and studied a course entitled Medical Transcription in 2000 and 2001. He stated that he worked as a medical transcriptionist from 2001 until 2004 and from 2013 until 2019 earning the equivalent of AU$8500 per annum. He stated that he came here as a visitor on a subclass 600 visitor visa granted in December 2018 and valid until December 2019. He stated that he has since been on a bridging visa. He stated that he enrolled in a certificate IV level qualification in cookery which began in July 2019 and is due to be completed in January 2021. He stated that his living costs here are AU$21,000 per annum.
He stated that he has a mother, and a spouse and son in his home country of Nepal. He stated that he remains in regular contact with his family via phone calls and video calls every other day.
He stated that there is a house and land asset back in his home country worth AU$170,000.
He stated that after completion of his studies he would like to return to his home country and implement the skills and knowledge that his acquired here in Australia by working in different hotels and restaurants. He stated that his plan is either to work as a chef in a five-star hotel or run his own business and he expects to earn more than AU$2000 every month.
He stated that he did not have any concerns regarding military service commitments or political or civil unrest in his home country that would stop him going home.
The Tribunal has also considered a statement from the applicant dated 21 May 2020 where the applicant stated that he achieved his year 12 education in 1996 and worked as an assistant teacher at a primary school for several years prior to undertaking a medical transcription course after which he worked in that area for several years in India. He stated that due to the poor health of his father he returned to his home country and started working for different transcription companies. He stated that he worked full-time until he came to Australia. He stated that he has a wife and son in Nepal and they live in a joint family-owned environment with parents. He stated that his brother lives in Australia, that he remains in regular contact with his family, and that he owns a house and land in Nepal. He stated that after he came to Australia to visit his brother and sister-in-law he was impressed with Australia and so decided to study. He stated that his cookery course will assist him in Nepal because of its tourism industry and that he has the aim of becoming a business administrator in the area of hospitality. He stated the education system here in Australia is very good. He stated that he was learning transferable business skills and also how to lead and manage people and coordinate marketing activities and operations. He stated that there are cooking schools in Nepal and that they are taught by experienced professionals, but the fees are higher than in Australia and the quality of the courses here in Australia are better and more practical. He stated that his brother here is helping him maintain himself here financially and is paying for his educational and residential expenses. He stated that he intends to go home once he completes his degree. He stated that his future plans are to continue his career in cookery and hospitality back in his home country or in India as there are significant opportunities in the tourism industry.
The Tribunal has also considered other material provided including a statement of employment from the applicant’s previous employer back in his home country, property valuation material, a statement of support, and other material.
The Tribunal has also considered a submission by the applicant dated 7 December 2020 where the applicant stated that his wife and son are in Nepal and live with parents, and that he has a brother in Australia and that he remains in regular contact with his family members in Nepal via messenger and other social media, that he came to Australia to visit his brother and sister-in-law and was impressed with Australia and its education system. He stated that he visited many restaurants and hotels and decided he would have a career goal to run his own business in hospitality. He stated that Australia has a great international education program with a high quality of safety and that his intention is to develop his cookery skills in a business environment and that the Australian education system is preferable to that of Nepal, and that his brother, who is an Australian citizen, is funding his stay here. He stated his future plan is to return to Nepal and search for jobs in the cookery and hospitality industry. He stated that Nepal has a vibrant tourism industry but that it lacks cuisines that are popular all over the world including Mexican and Chinese.
At the hearing the Tribunal had a discussion with the applicant regarding his stay and study here in Australia noting that he first came here as a visitor to visit his brother and sister-in-law. The applicant stated that he first came here as a visitor to see his brother and became impressed with Australia and decided to study here. He stated that he has not returned home since his arrival, nor is he working but he has some saved income and property and that he has been living with his brother and sister-in-law and that his brother is an Australian citizen. He stated that after he finishes his cookery course, he intends to do a diploma level course in hospitality. He reiterated that the purpose of his stay now was to study cookery so he could pursue that career back in his home country.
The Tribunal had a detailed discussion with the applicant regarding the circumstances of his decision to arrive here as a visitor on a short-term visa and then to stay here with his brother on a long-term student visa. After careful consideration of the applicant’s evidence the Tribunal has developed a concern that the applicant was unable to provide a coherent narrative of the circumstances of his arrival here in Australia and his subsequent decision to stay as a student. The Tribunal finds that the applicant’s evidence in this regard is not credible. The applicant provided a narrative that seemed contrived and also that seemed as if the applicant was seeking to arrive in Australia under any circumstances and then develop a strategy to remain here more long-term. The Tribunal finds that applicant’s visa and immigration history lends weight to the contention that the applicant was seeking to use the student visa program as a means to circumvent the migration program.
The Tribunal also had a detailed discussion with the applicant as to the value of his current enrolment in cookery and his proposed enrolment in hospitality bearing in mind that he completed his high school level education back in his home country of Nepal in 1996 and then has spent some years training for and working as a teacher and also receiving some form of training in medical transcription and also working in that area. The Tribunal had a detailed discussion with the applicant regarding the value of his proposed courses and notes that the applicant has stated that he now wishes to study and work in the cookery and hospitality field. The applicant has simply asserted that his aim is to go back home and work in hospitality. The Tribunal has considered the applicant’s evidence carefully and finds that the applicant has not provided evidence in this regard that the Tribunal finds credible. The Tribunal finds that the applicant is seeking to undertake courses that are not consistent with his current level of education having worked as a teacher and also as a medical transcriber and this course in cookery and a subsequent course in hospitality will not assist the applicant to obtain employment or improve employment prospects in his home country. The Tribunal notes that decision-makers should allow for reasonable changes to career study pathways however in this case the applicant has not put forward a coherent narrative that satisfies the Tribunal that there is any real value to the applicant’s current enrolments. The Tribunal is concerned that the applicant is constructing a narrative of the value of these courses saying he wants to go home and work in these fields but is in fact maintaining enrolment to remain residence in Australia. The Tribunal finds that the relevance of the course of the applicant’s past or proposed future employment is not evident and that the remuneration the applicant can expect to receive in his home country or a third country is also not evident from the proposed course of study. The Tribunal finds that this lends weight to the contention that the applicant is not a genuine temporary entrant.
The Tribunal had a detailed discussion with the applicant regarding why he has chosen to stay here as a student after having arrived here as a visitor and why if he wanted to study cookery didn’t he go back home and study it as similar courses would be available there. The applicant stated that there are courses available back in Nepal but they’re not as good as the courses available in Australia. The Tribunal has considered this statement by the applicant carefully and does not find the applicant’s evidence in this regard credible. The Tribunal finds that the applicant has not given reasonable reasons under the circumstances for not undertaking low level courses in cookery and hospitality in his home country or region as similar courses are available there. The Tribunal notes that decision-makers should allow for any reasonable motives to be established by the applicant however in this case no such reasonable motives were established by the applicant that the Tribunal found credible. The Tribunal finds that this also lends weight to the contention that the applicant is not a genuine temporary entrant.
The Tribunal had a detailed discussion with the applicant regarding his personal ties with Australia and notes that the applicant is living here with his brother and has been since his arrival and that he now seeks to remain here for a significant period of time to further his residence here in Australia. The Tribunal was concerned by the applicant’s evidence in this regard and after consideration finds that the applicants ties with Australia would seem to present as a strong incentive for the applicant to remain in Australia and this includes particularly family ties. The Tribunal finds that this lends weight to the contention that the applicant is not a genuine temporary entrant.
The Tribunal has also considered the applicant’s personal ties with his home country and notes that the applicant has significant family back in his home country including his wife and son however it is also noted that the applicant has stated that he remains in regular contact with his family and did not indicate that he was having any problems maintaining his family relationships from here. It is also noted by the Tribunal that the applicant has not made an effort to return home. The Tribunal finds that this also lends weight to the contention that the applicant is seeking to use the student visa program to maintain residence in Australia and is not a genuine temporary entrant.
The Tribunal has also considered the applicant’s economic circumstances and notes that he is being supported by his brother here in Australia and also that he stated that he has supported himself via saved income and property back in his home country. The Tribunal notes that the applicant is able to maintain himself here adequately through this mechanism and further notes that property can be bought or leased or sold from here in Australia in any case and is therefore not an inducement to return home. The Tribunal finds under these circumstances living with his brother with his brother supporting him that his economic circumstances would present as a significant incentive for the applicant not to return to his home country and that this would also suggest that the applicant is not a genuine temporary entrant.
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
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.
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.

[2020] AATA 6103

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Statutory Construction