Adhikari (Migration)
[2021] AATA 4831
•17 November 2021
Adhikari (Migration) [2021] AATA 4831 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Sudip Adhikari
CASE NUMBER: 2004294
DIBP REFERENCE(S): BCC2019/4816141
MEMBER:Margaret Forrest
DATE AND TIME OF
ORAL DECISION AND REASONS: 17 November 2021 at 10:50 am (QLD time)
DATE OF WRITTEN RECORD: 28 November 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student Temporary (Class TU) visa.
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – applicant completed two courses – property and community involvement in Nepal – plans to start a business in home country – value of course to future career – significant family ties in home country – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cl 500.212APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 February 2020 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).
At the hearing on 17 November 2021, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
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 clause 500.212 of Schedule 2 to the Migrations Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine temporary entrant.
The applicant appeared before the Tribunal by telephone on 17 November 2021 to give evidence and present arguments. The applicant was assisted in relation to the review by his registered migration agent who submitted written submissions to the Tribunal and also made some oral submissions during the telephone hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
In the week prior to the Tribunal hearing, the Tribunal sent the applicant a copy of his records from the Provider Registration and International Student Management System, known as PRISMS. The Tribunal indicated that the member may refer to the applicant’s PRISMS record during the hearing. On the basis that the applicant’s PRISMS record contains information that is entirely consistent with information the applicant has already provided to the Tribunal, the Tribunal did not put the applicant’s PRISMS record to him during the hearing.
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 is a genuine temporary entrant.
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.
The applicant confirmed that he first arrived in Australia on 22 July 2019. The applicant also confirmed that all of the information he submitted to the Tribunal in the information form on 3 October 2021 was correct.
When the applicant first arrived in Australia, he was on a visitor’s visa valid from May to September 2019. The applicant submitted his current student visa application on 25 September 2019 and he was proposing to study a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.
Prior to coming to Australia, the applicant completed high school in his home country of Nepal. Prior to coming to Australia, the applicant undertook the following work in Nepal. He worked as a sales person between 2013 and 2015. He worked as a sales manager between 2015 and 2016, and he worked as an operator between 2016 and 2017.
Since arriving in Australia, the applicant has completed the following study:
a.a Diploma of Leadership and Management between October 2019 and September 2020, and
b.an Advanced Diploma of Leadership and Management between October 2020 and October 2021;
c.the applicant is presently enrolled in a Graduate Diploma of Strategic Leadership that is scheduled to commence in January 2022 and conclude in January 2023.
The applicant has not worked since he arrived in Australia.
The Tribunal asked the applicant about the circumstances in his home country. In the information form the applicant submitted to the Tribunal, he was asked the following question:
If there are similar courses available in the main applicant’s home country or region to the course or courses they are currently studying and/or propose to study in Australia, please give details of the main applicant’s reasons for not undertaking the course or courses in their home country or region.
The applicant responded:
The applicant is a business owner in his home country, Nepal. Mainly business courses are delivered in three years or four years for graduate and postgraduate level in Nepal. Further, the applicant decided to study business while already in Australia after learning two years advanced diploma courses being offered by education providers such as Choice Business College. The business courses in home country are limited to a certain standard and not yet reached a standard that would deliver a good outcome for students in relation to employability and entrepreneurship. However, business qualification in Australia is widely known and provides a skillset by adopting innovative mindset.
The applicant told the Tribunal that his wife, his nine-year-old daughter, his three-year-old son and his parents presently reside in Nepal and he last saw them in July 2019. The applicant said he keeps in touch with them daily via Messenger and Viber. The applicant said as he is the eldest son of his parents, he needs to go back and look after his parents and their property.
The applicant said that if he is granted a student visa he does not plan to bring his family to Australia. The applicant said he has not returned to Nepal since he arrived in Australia, and one of the reasons for this was the borders being closed. The applicant said that he has property in Nepal in his name consisting of a farm worth approximately AU$60,000.
The applicant said that his community ties in Nepal consist of the following: the applicant is well‑known by his local community in Nepal and actively participates in local charity programs such as contributing financial assistance for a community. The applicant and his parents have donated land to a local community for establishment of a community hall. The applicant has also participated actively in raising funds for upgrade of the local school in the area of his home town. The applicant’s family has also donated land for a water supply project which is run by the government for the local community.
The Tribunal asked the applicant about his potential circumstances in Australia. The applicant said that his sister and his brother presently reside in Australia. The applicant said when he first arrived in Australia he lived with his sister for one year and after that he has been living with his brother. The applicant said he still visits his sister once a week. The applicant said his sister is a permanent resident in Australia and has applied for citizenship and her husband is a citizen of Australia. The applicant said his brother is on a student visa and that next month he intends to apply for a new visa. The applicant said his sister is supporting him financially in Australia. The applicant said his community ties in Australia consist of his sister and brother living here, and the applicant said he has no property in his name in Australia.
Based on all of this evidence, the Tribunal finds that the applicant’s family ties to Nepal do not, of themselves, constitute a strong incentive for the applicant to return to Nepal. In making this finding, the Tribunal has placed significant weight on the fact that the applicant has been in Australia for two and a half years and has managed to keep in touch with his family in Nepal via electronic means during that time and has not returned to Nepal during that time.
The Tribunal also finds that the applicant’s family ties to Australia do constitute a strong incentive for the applicant to remain in Australia. In making this finding, the Tribunal has placed significant weight on the fact that the applicant’s brother and sister presently reside in Australia and the applicant’s sister is a permanent resident who has applied for citizenship, and the fact that she is supporting the applicant financially.
The Tribunal asked the applicant when he plans to leave Australia if his current course finishes in January 2023. The applicant said if he gets a visa, he plans to go back to Nepal for a visit, then come back to Australia and finish his course and then go back to Australia (sic) permanently.
The Tribunal asked the applicant why he decided to completely change his plans and study in Australia when he arrived in Australia on a visitor’s visa. The applicant said he initially arrived in Australia for a seven-week visit, but he visited people and he did research and he learnt about business courses, and after he found a list of business colleges he decided to do a Diploma and Advanced Diploma of Leadership and Management. The applicant said these courses were related to his business and they will enhance his professional and personal ability.
The Tribunal asked the applicant why he was planning to study the Graduate Diploma of Strategic Leadership when he had already completed the course that he planned to complete when he first applied for a student visa. The applicant said that he found that the course was useful for business and that the financial position in Nepal is not good at the moment, and he discussed with his parents and wife that it was not a good time to increase his investment in his business in Nepal, so he plans to stay in Australia for one more year.
Based on all of this evidence, the Tribunal is concerned that the applicant is attempting to use the student visa system to stay in Australia for longer.
The Tribunal asked the applicant about the value of his courses to his future. In the information form the applicant submitted to the Tribunal the applicant indicated that his future plan was to expand his buffalo farm business, which presently is a buffalo milk farm. The applicant confirmed this is still his current future plan.
The Tribunal asked the applicant if he had a written business plan for this expansion and the applicant said, “No.” The applicant said his farm presently has 27 buffalos and he has discussed the expansion with his family. The applicant said his business is now a small business that supplies milk to the supplier but he is planning to eventually supply milk direct to the customer and open an outlet to sell milk himself. The applicant said he then plans to buy machines to produce milk-related products.
The Tribunal asked the applicant why he needs his current course, a Graduate Diploma of Strategic Leadership, in order to complete his future plans. The applicant said the Diploma and Advanced Diploma of Leadership and Management taught him about finance, risk and essentially running the day‑to‑day operations of a business. The applicant said that his course in strategic leadership would teach him about having a strategic vision for an organisation and would help him with expanding his business.
The Tribunal finds that based on all of this evidence, the applicant has provided only vague details about his future plans and has failed to explain in any meaningful detail why he requires his current course in order to complete his future plans. In making these findings, the Tribunal has placed significant weight on the fact that the applicant does not have a written business plan for the expansion of his business and he already has a Diploma and Advanced Diploma of Leadership and Management.
The applicant told the Tribunal that prior to coming to Australia he was earning approximately AU$13,000 per year as an operator in Nepal. The applicant is not working in Australia.
The applicant said that his business presently earns approximately AU$2100 per week in income, without taking out expenses. The applicant said he expects this income will increase to approximately AU$5000 per week when he expands his business. Based on the Tribunal’s earlier finding in relation to the applicant’s future plans, the Tribunal places little weight on this evidence.
The Tribunal has taken into account the applicant’s immigration history insofar as he arrived in Australia on a visitor’s visa and is now attempting to extend his stay in Australia to January 2023.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Taking into account the findings and evidence that I have summarised, on balance the Tribunal is concerned that a student visa may be used primarily for maintaining ongoing residence.
On this basis, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.
Conclusion on cl.500.212
Accordingly, the applicant does not meet cl.500.212(a). 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 these 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, and 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.
Margaret Forrest
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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