1622619 (Migration)

[2018] AATA 456

1622619 (Migration) [2018] AATA 456 (30 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622619

DIBP REFERENCE(S):  BCC2016/2125574

MEMBER:David Barker

DATE:30 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2018 at 7:06am

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – Enrolled in multiple courses – Difficult personal circumstances –  Medical condition – Submitted a bogus medical report – Use of Student visa program to maintain ongoing residential status

LEGISLATION

Migration Act 1958, ss 65, 359A, 499

Migration Regulations 1994, Schedule 1 Item 1222 Schedule 2 cl 572.223 Schedule 4 Criterion 4020

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 22 June 2016. The delegate decided to refuse to grant the visa on 13 December 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted 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); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that, after having regard to his circumstances and immigration history and other relevant matters, the applicant intended to genuinely stay in Australia temporarily.

4. The applicant was invited to appear before the Tribunal on 7 November 2017, at 9:30 am. However, on 9 November 2017, the Tribunal received an email from his representative requesting the hearing be postponed and making reference to an earlier email he said he had sent the Tribunal in relation to a postponement request, which he provided a copy of and which was dated 9 October 2017.  The Tribunal has reviewed the registry records and there is no indication in these records that the email referred to by the applicant’s representative was received by the Tribunal, on or around 9 October 2017.  Included with the email from the applicant’s representative, which the Tribunal received on 6 November 2017, was a copy of a brief letter from a [Dr A] and certificate, dated 7 October 2017 and a brief letter from a [Dr B], dated 3 November 2017.

5. The Tribunal consented to the request for a postponement in the hearing.   On 9 November 2017, the Tribunal invited the applicant to appear before it on 29 November 2017 for his rescheduled hearing.  This invitation explained to the applicant he could participate in the hearing by telephone, if he was unable to appear in person and that if he was to make a further request for a postponement on medical grounds, he should provide a further medical report providing specific details as to why he would have difficulty in participating in the review he has asked the Tribunal to undertake.

6. The Tribunal received no further response from the applicant, or his representative in response to this hearing invitation.

7. In response to the Tribunal’s concerns about the authenticity of the letter purporting to be from a [Dr A] and another medical report which was provided to the Department, in response to their invitation for the applicant to comment on concerns about whether he was a genuine entrant to Australia, a letter inviting the applicant to respond to information highlighting these concerns was sent to the applicant, pursuant to s.359A of the Act, on 9 November 2017. This letter invited the applicant to comment on or respond to information which the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The letter explained to the applicant any comments or response from him should be provided to the Tribunal by 23 November 2017 and if he could not provide them by that date, any request for an extension of time in which to comment, or respond should be received by the Tribunal by 23 November 2017. The letter explained if no comments, or response was received from the applicant within the specified period, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information and that he would also lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

8. The Tribunal received no comments or response from the applicant, or his representative in relation to the letter sent to him, on 9 November 2017, pursuant to s.359A of the Act.

9. Given the lack of comments or response from the applicant, or his representative in relation to the letter sent to him pursuant to s.359A of the Act on 9 November 2017 and the Tribunal’s determination the applicant has ceased to have an entitlement to appear before it at a hearing and it has proceeded to determine the matter on the information currently available to it.

10. On 13 December 2017, the Tribunal sent a further letter to the applicant pursuant to s.359A. This letter invited the applicant to comment on or respond to information from the Provider Registration and International Student Management System (PRISMS) which indicated a Certificate IV in Accounting course and a Diploma of Accounting course the applicant was most recently enrolled in were cancelled on 24 April 2017 and that there is no evidence he is now enrolled in, or has a current offer of enrolment in any applicable course of study in Australia. The letter told the applicant this information is relevant because if the Tribunal finds he is not studying, or does not have a current offer of enrolment in a registered course of study it will affirm the decision under review. The letter explained to the applicant any comments or response from him should be provided to the Tribunal by 9 January 2018.

11. On 27 December 2017, the Tribunal received a letter from the applicant’s representative and two Certificate of Enrolments (COE’s).  The Tribunal has considered this further evidence.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

14. The issue in the present case 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)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)    …

15. 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;

    ·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.

16. 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.

17. On 18 January 2017, the Tribunal received written submission from the applicant’s representative, which states in part:

    [the applicant] arrived in Australia on 26 November 2011 on Student Visa Subclass 573, which was valid until 14 March 2013. He applied for another Student Visa Subclass 572 which was approved on 21 March 2013 and valid until 20 May 2015. Subsequent to this another Student Visa Subclass was applied which was approved on 24 July 2015 and valid until 24 June 2016.

    Having regard to the considerations set out in Direction 53, I submit that this is an appropriate case to exercise power to set aside the decision to refuse the visa. The reasons are outlined as follows:

    Applicant's Circumstances in their home country (Item 9 & 10, Ministerial Direction No53)

    Political and Economical Status
    [the applicant] is a Nepalese national. The current political situation of Nepal is stable. Government is currently developing major infrastructures like roads in the capital city where the Applicant comes from and also many hydropower projects. Moreover the government has brought new policies to regulate the financial and banking sectors of the country for proper accountability of the finance and banking industry. The economic development is slowly growing in Nepal. There is currently good job opportunities in banking, finance and accounting sector in Nepal which is a huge incentive to [the applicant] to return to Nepal.

    Reason to undertake study in Australia
    The education system in Nepal is more book based, whereas in Australia it is more
    focused on practical activities like group assignment, case scenarios, presentations etc.
    The course program in Australia is to make student job ready as soon as they finished their studies. They are not just equipped with theoretical knowledge but also real work skills required to succeed in the any relevant job position. Moreover the learning environment is multicultural and there are opportunities for cross cultural learning. Whereas it is exact opposite in Nepal. Hence why [the applicant] decided to undertake study in Australia. Further the job prospects of overseas graduates is far better than local graduates.
    The course program in Australia is to make student job ready as soon as they finished their studies. They are not just equipped with theoretical knowledge but also real work skills required to succeed in the any relevant job position. Moreover the learning environment is multicultural and there are opportunities for cross cultural learning. Whereas it is exact opposite in Nepal. Hence why [the applicant] decided to undertake study in Australia. Further the job prospects of overseas graduates is far better than local graduates.

    Personal ties in home country and significant incentive to return
    [the applicant] has very strong and close ties to Nepal. All his family members and siblings are currently in Nepal and [the applicant] is determined to go back to Nepal and join his family after completion of his course. His family consists of his father, mother, an elder brother and an elder sister. He is the youngest son of the family. His parents are expecting him to complete his education and to return back home to be with the family and also as per Nepalese culture, parents have huge expectation especially from son. [the applicant] understands the responsibility that lies on his shoulders and is keen to return and fulfil his generational obligation to his family. He has already spent 6 years on his own in Australia without regular interaction with his family.

    Further the job opportunity for young overseas graduates are very high in Nepal. With new financial regulations in place the graduates with overseas studies are on high demand. Major banking and financial institutions are frequently advertising for vacant positions for Accountants and many other relevant positions. His employment prospect is not just limited to aforementioned sectors, he can secure opportunities in wide range of industries like engineering, media house, schools and colleges. In addition many development plans under implementation has created numerous job opportunities for young peoples,

    Applicant's Potential circumstance in Australia
    Applicant's ties with Australia and incentive to remain in Australia
    [the applicant] has been living in Australia for past 6 months on his own in a shared accommodation. He doesn't have any family members or relatives in Australia. [the applicant] went through a family tragedy in April 2015 whereby his grandfather passed away during major earthquake that Struck Nepal in 2015. He wanted to return back to Nepal to support his family at this hard time. However his parents wanted him to finish his studies prior returning to Nepal. [the applicant] wants to complete the education that he is currently on and return to see his family.

    Student visa program to maintain ongoing residence
    During 6 years of stay [the applicant] has changed various faculties from Information Technology to Tourism to Accounting to Management. One of the main reason behind this is lack of proper advice and support from agencies that are involved in recruitment of International students. Further with changing opportunities in Nepal, [the applicant] thought IT sector was booming globally which would be a good career opportunity. Again in second thought Nepal is quite famous destination for tourist and one of the major source of national income is Tourism which is why he thought Tourism is better for him. Moreover his family wanted him to get a good job in banking and finance which made him look into Accounting and management. Eventually [the applicant] decided that numbers fascinates him a lot and accounting skill can be used in any sector whether it be IT Company, Tourism, Banking or Financial sector and hence decided to go back to Accounting.

    Applicant's knowledge of living in Australia and Intended course of study
    This is a well informed decision after numerous thought sessions and also support from his family. His family has taken full financial responsibility in relation to his current course. The applicant has sound knowledge about living in Australia as he has been here for 6 years. Further he understands the skill and qualification he would gain from current course Certificate IV in Accounting followed by Diploma of Accounting. He is also aware the further study pathway is Bachelor Degree, Majoring in Accounting/Finance, which can also lead to Post Graduate Master's Degree options.

    Value of the course to the Applicant's Future
    The education holds significant value to the Applicant's Future. This is a qualification which he can use in any sector. Accounting staffs are needed in businesses operating in any industry whether it be banks, hotels, IT companies, engineering firms. The qualification opens door to endless opportunity to the applicant. Further [the applicant] is quite keen to secure a successful career and position in banking and finance industry. There are many new banks opening in Nepal. [the applicant] has in past graduated in Environment Science and Hotel Management. With minimum to almost no scope in Environmental Sector in Nepal, he decided to do Hotel management but after few years of work in Hospitality sector, now he found its not something that he enjoys. He has been always fascinated by number and believes accounting will suit his career plan and lifestyle over other faculty.

    Applicant's Immigration History
    [the applicant] arrived in Australia in 26 November 2011 and has done 2 trips outside Australia till date. He has always complied with visa condition imposed on his visa subclass as much as practicable. However he was unable to comply with condition 8202 (continues studying), from 26/05/2014 to 08/05/2015 and from 31/07/2015 to 20/06/2016 due to medical reasons.  [the applicant] has been very sick since 2014, he was diagnosed with acute distress disorder.

    Please refer to attached letter from the doctor. This document has been previously submitted with visa application. He was advised by the doctor to take rest since February 2014. He was not in state to study, work or eat on his own for nearly a year.

    He was getting better at the beginning of 2015 and enrolled to study Advanced Diploma of Management at Gateway Business College commencing on 8 May 2015 which would have finished in April 2016. On April 272015, a massive earthquake struck Nepal killing thousands of peoples and many injured. The earthquake left a massive destruction in the area where [the applicant] comes from. He was informed by his parents that everything was ok and the family was safe. However later he came to know through a friend that his Grandfather had passed away due to earthquake, which was later confirmed by his parents. It was hidden from him as he was already suffering from mental disorder and his parents didn't wanted to put more stress on him. He was very close to his grandfather since childhood and this tragedy left him in massive distress. He wanted to go back to Nepal but his parents advised him not to come as post-earthquake was still dangerous due to numerous aftershocks and condition was worse. [the applicant] was slowly getting depressed and sad. He was unable to focus on study as he was physically and mentally stressed.

    He visited the doctor on 15 June 2015 and was diagnosed with mental disorder called dissociative amnesia. Please refer to attached letter from the doctor. The doctor advised him to take rest and stop stressing about anything. He was unable to continue his studies for another year till June 2016.

    On 24 June 2016 he visited doctor and advised that he was much better and there was lot of improvement. He was advised to focus on his career and study. He was quite happy on this outcome and also consulted with parents to go back to study. His parents assured him to support financially and were ready to do whatever it takes so that he can complete his studies. They were worried about his future. [the applicant] has promised his parents that he will complete his studies this time and will not let them down. Then he enrolled to study Certificate IV in Accounting which commenced from 22 August 2016. This course will be followed by Diploma of Accounting commencing on 2 October 2017.

    Compassionate Reasons
    [the applicant] started his journey to Australia with a dream to achieve overseas qualification which will make him qualified to gain respectful job in Nepal. His parents had huge hope for him to succeed in his academic achievement in Australia. Further his parents have taken a huge loan to pay for his education fees and other associated costs during his stay in Australia. Till date he has been unsuccessful to gain any qualifications due to lack of proper guidance as well as unavoidable medical reason and family tragedy.He is very determined to get his life back on track and to complete current qualification of Certificate IV in Accounting followed by Diploma of Accounting. He has already commenced Certificate IV in 22 August 2016 and have maintained good academic records and also maintained 100% attendance (evidence attached). Further he is keen to complete remaining part of the course and return to Nepal.

    He had recently got married on 19 August 2013 and really excited to continue his life back in Nepal with his wife after completion of study. However due to his circumstances he has been undergoing undue mental pressure which led to adverse effect on his marriage. The couple have been experience difficulty for some time and the relation has come to an end. His wife filed for divorce request which has been finalised and divorce has been registered by local authority in Nepal on 14 October 2016.

    If he is to return to Nepal without gaining any qualification he will be subject to hate and neglect from his parents and siblings. Moreover due to his marriage breakdown he will also be subject for undue social pressure from his friends, relatives and community. Further it'll be very hard for him to find a job which in turn put him in financial hardship as well as the loan taken for his education will put additional burden to him and his family.

    Conclusion
    I urge you to set aside the decision to refuse his student visa application subclass 572 as:

    1.          He meets all other requirement set out in Schedule 2 of the Regulations.

    2.          He is determined to get his life back on track and to complete his study.

    3.          He intends to stay temporarily in Australia until completion of his studies.

    4.          He wants to return to Nepal upon completion of his studies and also has strong family  ties and strong incentives to return.

    5.          He has continued support from his family and they want to gain some qualification from Australia prior returning to Australia.

    6.          He would be subject to undue financial hardship, neglect, mental stress from family, friends and society if he returns to Nepal without any qualifications which was his intended purpose to come to Australia.

1. The letter from the applicant’s representative, dated 27 December 2017 states:

   I am writing in response to your correspondence dated 13 December 2017 in relation to response for cancelled enrolments on 24 April 2017 in PRISMS for Certificate IV in Accounting and Diploma of Accounting for [the applicant].

   [the applicant] is currently enrolled for Diploma of Accounting. He enrolled into Diploma of Accounting in October which commenced on 23/10/2017. I have attached confirmation of enrolment. Further the education institute has also issued CoE on a current date which is also attached herewith.

   [the applicant] is very keen to continue his studies and looking forward on completing this qualification. He is grateful with the opportunity given to him to study in Australia, and at the same time regrets that was unable to complete previous qualifications. He is now determined to get his study back on track and complete this course program and achieve the goal that brought him to Australia.

   His parents are also very happy that he will continue his studies and also assured to support financially and ready to do whatever it takes so that he can complete studies and return back to Nepal. They are worried about his future. He has promised to his parents that he will complete Diploma of Accounting and return to Nepal. He feels very lonely and sad in Australia so he visited his parents and family back in Nepal from 25 October to 5 November to overcome emotions. During the visit he had full family support and was very happy.

   His parents have spent significant amount of money over the time to support for his studies in Australia and has high hope that he would gain better education in Australia. If he is to return without completing this course it is highly likely that he will be neglected by his family, not show support and humiliated by friends, relative and the community. He will not be able to secure a job and make his living and likely to face harsh life.

   Therefore I request you to give him a chance that will allow me to continue to study in Australia and deliver what was promised to his parents. I request you to consider this application and grant him required visa. Further he'd like to assure you that he will study regularly, maintain good academic standing and abide with all visa conditions that may be imposed.

   Credibility

2. The Tribunal has concerns about the weight that can be given to evidence from the applicant. These pertain to his request for a postponement in relation to the hearing that was set down for 7 November 2017. On 6 November 2017, the Tribunal received a request for a postponement from the applicant’s representative on the basis the applicant was under treatment for a mental health condition. In support of this request he provided a document purporting to be a medical report dated 7 October 2017, which the Tribunal is concerned is not authentic. The applicant failed to respond to a letter sent to him on 9 November 2017 pursuant to s.359A of the Act, seeking comment from him in relation to this and an earlier document, dated 6 July 2015, purportedly from another doctor, about which the Tribunal also had authenticity concerns. The particulars of information put to the applicant regarding these two documents, which the applicant declined the opportunity to comment on were as follows:

3. The particulars of the information, in relation to a medical report purporting to be from [Dr C], dated 6 July 2015 that were put to the applicant were:

   ·there does not appear to be a medical practitioner by that name practicing at the address on the letterhead upon which that report is written, or at any other medical practise in the [area];

   ·there is no medical practice operating at the address identified in the letterhead upon which the report was written;

   ·the phone number on the letterhead upon which the report was written is disconnected;

   ·there is no medical practitioner by the name of [Dr C] registered with the Australian Health Practitioner Regulation Agency;

   ·the medical report refers to a condition ‘Acute Distress Disorder’.  There is no reference to any such condition in the Diagnostic and Statistical Manual of Mental Disorders Edition 5 (DSM-5).

4. The particulars of the information in relation to a medical certificate from [Dr A], dated 7 October 2017 were:

   ·there is no doctor by that name practicing at the address identified on the letterhead upon which the purported medical certificate is written;

   ·the phone number identified on the letterhead is not connected to any medical practice;

   ·there is no medical practice operating at the address identified in the letterhead upon which the report was written;

   ·There is a [Dr A] practising elsewhere in [another suburb], NSW.

5. The letter sent to the applicant explained this information is relevant because it raises concern the medical report from [Dr C] and the medical certificate from [Dr A] are not genuine and that they do not provide credible information about the applicant’s wellbeing and mental status.  The letter explained that if the Tribunal found these documents to be bogus documents that are not genuine it may have concern about the applicant’s claim about how his mental health has impacted his studies in Australia.  The letter informed the applicant that if the Tribunal finds he has provided bogus documents or false and misleading information to the Tribunal this will raise concern about the general reliability of his evidence and his claims about his study history in Australia and that if the Tribunal finds the applicant is not genuinely a temporary entrant in Australia it will affirm the decision under review.  The letter also stated that if the Tribunal finds the applicant has provided bogus documents or false and misleading information to the Tribunal this will raise concern that he does not meet the provisions established in Public Interest Criterion 4020. 

6. The Tribunal has a significant concern both of the aforementioned documents are bogus documents and has drawn an adverse inference from the applicant’s lack of response to the letter sent to him pursuant to s.359A. The Tribunal is satisfied the applicant has provided false information in support of his request for a postponement and also in relation to the matters under consideration in this review, namely as to reasons for gaps in his studies. On the basis of these concerns, the Tribunal finds the applicant is an unreliable witness and has placed no weight on evidence provided by him where it is not corroborated by credible and objective third party evidence.

7. At the time he lodged an application for a subclass 572 Student visa in June 2016, the applicant was enrolled to undertake a Certificate IV in Accounting, which was to run from August 2016 to August 2017 and a Diploma of Accounting, which was to run from October 2017 to September 2017.  His enrolment in both of these courses was cancelled in April 2017.  Prior to this his enrolment in a Diploma of Information technology he was enrolled to study from November 2011 to November 2012 was cancelled, as was his enrolment in an Advanced Diploma of Tourism he was due to study between February 2013 and March 2015.  Further to this, the applicant’s enrolment in a Diploma of Accounting he was due to undertake from January 2014 to June 2015 was cancelled, as was his enrolment in an Advanced Diploma of Management he was due to study from May 2015 to April 2016.  The Tribunal notes the letter from the applicant’s representative, dated 27 December 2017, states the applicant is ‘keen to continue his studies’ and that he has enrolled in a Diploma of Accounting which commenced on 23 October 2017.  The Tribunal notes the applicant departed from Australia from 25 October 2017 to 5 November 2017 and as there is no evidence he sought exemption for the first few weeks of study in this course, presumably failed to commence study in this course when he was required to do so.

8. The Tribunal acknowledges the applicant is enrolled to study in a Diploma of Accounting from January 2018 to January 2019, but finds he has yet to complete any courses that he has been enrolled in since he came to Australia in November 2011.  Further to this, on the basis of this information the Tribunal finds there is no evidence to show the applicant has progressed academically since his arrival in Australia, despite being in this country for over six years.

9. The applicant provided medical certificates with his review application.  Due to my concerns, as to the authenticity of this medical evidence, which is discussed elsewhere in this decision, I have placed no weight on the documents dated 6 July 2015 and 7 October 2017. The Tribunal has reviewed the letter, dated 3 November 2017, from [Dr B] from [a] Hospital in Nepal, but has placed only limited weight on this document as it does not provide clear information regarding the applicant and appears to pertain to the hearing postponement request rather than the applicant’s general capacity to study. The Tribunal also noted with some concern this document states the applicant had been transferred to Nepal and is going into treatment with the doctor, despite the evidence otherwise available which indicates the applicant returned to Australia on 5 November 2017.  Whilst the Tribunal accepts the applicant would have been impacted by the death of his grandfather and the general circumstances of the earthquake in Nepal in 2015, the Tribunal is not satisfied the available credible evidence is establishes the applicant was medically incapacitated to study due to a mental health condition, or other medical conditions for any period since 2011.

10. The Tribunal has concern regarding the changes in vocational direction evident in the courses the applicant has enrolled in since he came to Australia in 2011, ranging as they do from information technology to tourism, accounting and commercial cookery courses.  The Tribunal has reviewed the applicant’s representative’s submissions in relation to this issue and considers them to be quite general in nature and is not satisfied they provide insight into the particular reasons the applicant has changed courses frequently.  The Tribunal is not convinced the available evidence establishes, as appears to be claimed by the representative that the applicant is on a credible pathway towards post graduate study in accounting.  This is because the applicant has yet to successfully complete any certificate or diploma course which would provide him with an accounting qualification of any sort.  The Tribunal also has concern the vocational sector courses the applicant has enrolled in whilst he has been in Australia have not, on the whole, provided the opportunity for significant academic progress, given he achieved a higher education sector university degree in environmental science in Nepal, prior to coming to Australia. 

11. The Tribunal accepts the applicant has family ties in Nepal, which provide him with some incentive to return to his home country at some stage.  The Tribunal notes the applicant’s marriage has unfortunately broken down and considers this to provide somewhat of a lessening of one significant tie he had to Nepal, as the divorce registration certificate provided with the review application indicates his former spouse was residing in Nepal at the time of their divorce in October 2016.

12. The Tribunal accepts the applicant has no military service commitments in Nepal which provide him an incentive to not return to his home country, nor concerns about the political situation or civil unrest there which would provide him an incentive to remain in Australia.

13. The Tribunal is not persuaded the applicant has credible plans for how he will apply any skills and qualifications he could achieve towards future employment in his home country.  The Tribunal has reviewed the information provided by the representative in relation to economic circumstances in Nepal and the opportunities available to people with overseas qualifications from countries such as Australia.  The Tribunal accepts this evidence but considers it general in nature and that it does not show the applicant has taken steps to research how he would seek employment or establish business opportunities for himself in Nepal.

14. 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).

15. 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

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

    David Barker
    Member