1515102 (Migration)
[2016] AATA 4081
•13 July 2016
1515102 (Migration) [2016] AATA 4081 (13 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: NABIN KISHOR KHAREL
CASE NUMBER: 1515102
DIBP REFERENCE: BCC2015/2399964
MEMBER:Lilly Mojsin
DATE:13 July 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 13 July 2016 at 3:20pm
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 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 to the Department of Immigration for the visa on 19 August 2015 in order to study a Diploma of Business and an Advanced Diploma of Business, with two different education providers, one of those providers being the Hamro College.
At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).
The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a genuine student.
The applicant appealed that decision to this Tribunal on 6 November 2015 attaching a copy of the Department decision to his application.
The applicant appeared before the Tribunal on 1 June 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Having regard to the applicant’s current proposed course of study, the relevant subclass in this application is Subclass 572.
The applicant was granted an initial student visa offshore on 10 February 2009 in order to study a Diploma in Business Information Systems. He did not complete that vocational course, he did not study between 23 June 2013 and 7 September 2014, and did not obtain a deferral from his education provider.
The applicant provided to the Tribunal Statement of Attainment, Final Academic Transcript, Certificate III in Information Technology and an Advanced Diploma in Information Technology from Australian College of Technology all dated 28 June 2012. The applicant also provided a cancelled Confirmation of Enrolment [CoE] from Hamro College.
At the Tribunal hearing the applicant advised the Tribunal he came to Australia in February 2009 in order to study a Diploma in Business Information Systems but he did not completed it as it had mathematical subjects. After that, he completed a Certificate III and IV and an Advanced Diploma in IT with an emphasis in networking.
He is not studying at the moment as the education agent told him he could study but if the visa decision was negative he had to return home and would not be able to study offshore on line. He finished his last course in September 2014, a Certificate IV in Business. After he finished the course he enrolled in the Diploma of Business in April 2015 at Hamro College. He was there for 3 months and Hamro College cancelled his CoE for an unknown reason. He was unaware he had to study for a Bachelors degree course. He had studied 3 subjects, being managements skills, computer application, marketing and finance skills. After his CoE was cancelled he tried to get his visa back, it was already finished. Since then he is struggling.
He now wants to study but he cannot make any decision. He would like to study IT networking. He has not enrolled anywhere and has made no enquiries about courses available. He is single, he does not work and he has casual work on and off. He obtains money from overseas. He has an aunt and an uncle in Sydney who help him. Only his mother is in Nepal. His mother’s extended family are in Sydney. He really wants to complete his degree now.
His intentions are to complete a degree as his sister has completed her degree and she now has residence. He wants to finish Bachelor and Masters degrees in IT to be able to work anywhere in the world. He would like to work at CISCO or other IT related networks. He would like to go to UTS to finish his course. When asked if there were any prerequisites that he needed in order to do so, he said that he is “not really aware of what really happens”.
The applicant said that he worked in Nepal in his uncle’s office in computers. If he returned to Nepal he does not know what he would do. A degree would allow him to obtain employment. He has been in Australia for 7 years and he thinks it will take him about another 5 years to complete his studies.
The advisor stated that the applicant was supposed to start a Diploma course in 2016 but he did not want to start and lose his money. His Diploma in Networking is relevant to his future course.
It was put to the applicant that he does not know what he wants to study or where he wants to study and he has made no enquiries about his intended course. He responded that it is not that hard to make an enquiry about an institute and he can do so in a few seconds. He will start to study once he gets his visa back. He would have applied for a permanent visa earlier as he has an uncle here but he has not done so.
REASONS AND FINDINGS
The issue in the present application is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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)…..; and
(iv)any other relevant matter; and
(b) …
In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction 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;
·………; 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 to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Applicant’s Circumstances
The applicant is a single man who has been in Australia as a student since 2009. His mother is in Nepal and his sister, who completed her studies in Australia, now has permanent residency. He has completed vocational courses since arriving in Australia, a Certificate III in Information Technology and an Advanced Diploma in Information Technology from Australian College of Technology. His intentions are to undertake tertiary studies in the IT sector in order to obtain better employment on his return to Nepal. The applicant also obtained a Certificate IV in Business. The applicant is not enrolled in any course of study, as he has been advised that if he commences to study a course and is not granted a visa, he will be unable to complete his studies online, despite paying course fees.
Applicant’s Immigration History
There is no information before the Tribunal that the applicant has an adverse immigration history or that he has applied for any other visas to other countries.
Other Relevant Matters
The applicant is from Nepal and does not have military service obligations there. The applicant only works casually in Australia and he is supported by his family overseas. His aunt and uncle in Sydney help him. The applicant has an extended family, on his mother’s side, who are in Sydney
The Tribunal accepts that the applicant worked in his uncle’s business when he lived in Nepal and he seeks to obtain qualifications to enable him to obtain employment in Nepal. The Tribunal accepts that the applicant’s mother is in Nepal and this is an incentive to return to Nepal but places greater weight on the applicant’s extended family and his sister being in Australia as an incentive to remain in Australia.
The applicant is not studying and is not enrolled in any course as he does not wish to pay course fees without a visa. The applicant wishes to complete a university degree, that will take at least 5 years to complete, because he would like to study a bachelors course and a master’s course in IT.
The Tribunal notes that the applicant’s CoE has been cancelled and he has no current CoE. In assessing whether the applicant intends genuinely to study in Australia, whilst the Tribunal places weight on the applicant having successfully completed vocational sector studies in IT in Australia, the Tribunal places greater weight on the applicant’s lack of making enquiries as to which course he would like to study and which institution he would like to study at. The Tribunal also places great weight on the applicant’s lack of enquiry as to what prerequisites are needed for further tertiary study in Australia. Whilst the Tribunal accepts that it is relatively easy to make all those enquiries, the applicant has not made any decision for the Tribunal to assess where and what he intends to study.
In light of the applicant not being aware of which course in which institution he would like to study and is not being aware of whether or not he has necessary prerequisites to study in his intended course, the Tribunal is of the view, on balance, that the applicant is seeking a student visa in Australia in order to prolong his stay in Australia .
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).
The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Lilly Mojsin
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Intention
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Standing
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