Acharya (Migration)

[2018] AATA 4332

Acharya (Migration) [2018] AATA 4332 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Samir Acharya
Mrs SANJU BHATTARAI ACHARYA

CASE NUMBER:  1711502

HOME AFFAIRS REFERENCE(S):           BCC2017/988337

MEMBER:Gabrielle Cullen

DATE:17 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

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

Statement made on 17 September 2018 at 12:38pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Arrived on subclass 573 visa – Non-completion of previous courses – Progress in current course – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.212

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 and Border Protection on 10 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.

3. The first named applicant (the applicant) arrived in Australia on 29 October 2013 on a subclass 573 visa valid to 15 March 2017. He has departed Australia from 3 December 2015 to 21 January 2016.

4. A Certificate of Enrolment attached to the applicant’s current application refers to the applicant studying a Bachelor of Business Information Systems from 25 February 2016 to 26 October 2018. Evidence provided by the applicant indicates he is studying this course, attending and is achieving course progression albeit slowly in 2016/7. An academic record indicates that as at 28 August 2018 he had successfully completed 14 out of 24 subjects towards the course or 59% of the course. The evidence indicates he passed 5/8 subjects in 2016, 5/8 subjects in 2017 and 4/4 in Semester 1 in 2018. In his statement he indicates he has 10 subjects to complete the course and is currently undertaking 4 subjects in semester 2/2018 and has requested an extension of time from the College to finish the final 6 in 2019. He provided evidence he has paid $45,120 towards the course plus an advance payment of $1,000 for Semester 2, 2018.

5. The evidence at the time of this decision, from the applicant and the Department decision indicates a previous study record as follows:

   ·English course successfully completed in November/December 2013.

   ·Diploma of Information Technology from February 2014 to September 2014 where enrolment was cancelled after the applicant notified cessation of studies.

   ·Diploma of Management from 6 October 2014 to August 2015 where enrolment was cancelled for unsatisfactory course progress.

   ·English course from September 2015 to December 2015.

6. The applicant provided evidence he completed his Secondary Education in Nepal. In a statement to the Department he claims he started a Bachelor of IT in Nepal but left to obtain better education opportunities in Australia. He claims IT has always been his field of interest and there are many career opportunities. He claims he came to Australia with the intent to undertake IT at UTS but studying there was too difficult. He claims after a long search he found his current education provider, APIC and it is a perfect option.  He claims study in IT will assist him in his future career and in Nepal there is a lack of people who can work in this field. He claims Nepal is in need of international trained IT professionals and his education in Australia will boost his career. He claims he has been supported financially by his parents. He claims he wants to return to Nepal with a degree and change the development of his country.

7. The second named applicant also provided a statement and states she married the applicant 16 months prior after being in a relationship for three years. She claims she is in Australia as a companion to her husband and she wants to be a caring wife so he will not stress due to his study.

8. The delegate decided to refuse to grant the visas on 10 May 2017. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned that he had not provided specific evidence as to how the degree will improve his career prospects and his employment prospects, his length of time in Australia and his study record. The delegate was concerned as to his limited course progress particularly as he arrived in Australia on a subclass 573 visa.

9. On 30 May 2017 the applicants lodged an appeal to the Tribunal and attached the decision of the Department.

10. On 17 August 2018 the Tribunal wrote to the applicants and invited them to attend a hearing on 13 September 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

11. The applicants provided the following relevant information to the Tribunal:

    ·Certificates showing completion of past courses and progression of current course as outlined above.

    ·Nepalese Marriage Certificate.

    ·COE to study Bachelor of Business Information Systems from 25 February 2016 to 26 October 2018.

    ·Email from the education provider acknowledging that the applicant’s request for a COE extension was in process.

    ·Nepalese Higher Secondary Certificate.

    ·Letter from All Business Solutions dated 29 August 2018 offering the applicant employment as a system analyst on completion of his study.

    ·Business registration certificate of the applicant’s parents business and evidence his father owns land in Nepal.

    ·Parent’s financial records.

12. In statements to the Tribunal the applicant provided the following additional evidence:

    ·He claims it was not correct as fund by the delegate that he was not studying from 27 February 2015 to 14 September 2015 and referred to the letter submitted from his education provider dated 13 May 2015 that he was studying the Diploma of Management at that time.

    ·He found studying at UTS very difficult when he commenced in February 2014. He claims it was a huge leap from studying in Nepal and as a result he left. He claims he was not able to obtain a release letter to study at other universities.

    ·He claims Sydney College of Business and Information Technology provided him with a bridge and he commence study in the Diploma of Management and after 8 months moved to the current education provider, where he had to complete a 10 week English course.

    ·He outlines why he wishes to study in Australia.

    ·He claims in December 2015 he returned to his country and married the second named applicant and started the Bachelor of Business Information Systems after that.

    ·He claims although there have been ups and downs he wishes to complete his degree. He claims skills learned about business and technology will assist him to work as a system analyst in a top business firm in Nepal.

    ·He only wants to stay to complete his degree and then he will return with his wife to establish himself as an entrepreneur. He refers to being offered a position as a systems analyst and claims that potentially there will be other opportunities. He claims his ultimate goal is to start his own business and his learning skills in the Bachelor degree will assist this.

    ·He claims he is being supported by his parents and he is responsible to look after his parents and their property as they grow older. He claims his family own a business called Samir Kirana Pasal, a convenience store and he will need to look after the shop in the future.

    ·He notes he is currently enrolled in 4 subjects and after completion of these he will have 6 to complete to achieve the degree.

    ·He reiterated that he has no intention of staying in Australia and wants to return to Nepal after completion of his studies.

13. The applicants appeared before the Tribunal on 13 September 2018 to give evidence and present arguments. Only the applicant gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

14. The applicant discussed in detail the difficulties he faced studying IT at UTS when he first arrived in Australia. He referred to the different study methods and different environment. He said he only passed a couple of subjects and was headed for failure. He said they would not release him and then he undertook the Diploma of Management as a bridging course. He discussed his current course progress and how he was going to complete the course. He said he has grown up in Australia and his recent positive marks (4/4 subjects successfully completed in 2018 so far) show he is learning how to study. He noted he had completed 59% of the current course. He was able to name consistent with information provided by the course provider[1] four subjects he is currently enrolled in. He said his exams are in 10 days and he will then only have 6 subjects to complete. The Tribunal discussed with him approaches he had made to extend his COE so he can complete the 6 remaining subjects. He said he has paid $1000 for next term. He said he will return to Nepal on completion of the Bachelor course. As to his future career aim, he advised he has been offered a system analyst position in Nepal and referred to the need for IT professionals in Nepal.

    [1] >

    The applicant was given until COB on 14 September 2018 to provide evidence of fees paid.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl.500.212(a)

16. 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.

17. 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 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.

18. 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.

19. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

20. This is a difficult case to assess. The applicant’s past study history and slow rate of course progress is of concern. Since his arrival in 2013 he has only successfully completed two short English courses. The evidence indicates his enrolment in the Diploma of Management was cancelled for unsatisfactory course progress in August 2015 and he did not complete the Diploma of IT he was initially enrolled in.

21. However, the Tribunal views his positive study record from 2016 in the Bachelor of Business Information Systems as persuasive that he is a genuine student. The Tribunal views as indicative of a genuine student his study record, completing 14/24 (59%) subjects and being enrolled in 4 subjects to be completed in late September 2018. It views as persuasive his recent achievement of completing 4/4 subjects in Semester 1, 2018. This supports his claim that his slow course progress was because he had to learn how to study in Australia and that it is very different to study in Nepal. He claims he is now studying well and achieving course progress. The Tribunal notes he has paid $1000 in advance and paid for the four subjects he is currently studying and will complete in September 2018. In total he has paid over $46,000 to achieve the Bachelor of Business Information Systems so far. It notes he was able to provide detailed knowledge consistent with independent ifnroamtion as to the current course.  

22. The Tribunal accepts he is currently studying, attending the course and achieving course progression. It accepts he his genuine in his evidence that he wishes to achieve the Bachelor of Business Information Systems. On the totality of the evidence, the Tribunal is satisfied that despite his initial difficulties, the applicant is committed to study in Australia so he can improve his employment and career opportunities when he returns to Nepal.

23. The Tribunal finds the reasons as to why he wishes to continue to study the course he is enrolled in as credible. The Tribunal finds the applicant’s current enrolment and future plans supportive of his claim that he sees Australia as a temporary location in which to study. He gave evidence that he will depart Australia on completion of his degree to return to a systems analyst positon in Nepal.

24. The Tribunal accepts that the balance of his family resides in Nepal. While his wife is with him in Australia she is also on a temporary visa. There is no adverse immigration record. There is no evidence of military service commitments or political and civil unrest In Nepal which would present as a significant incentive for the applicant not to return to his home country.

25. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

26. 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

27. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

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

    Gabrielle Cullen
    Member