Adhikari (Migration)

Case [2022] AATA 1484

Adhikari (Migration) [2022] AATA 1484 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Prakash Adhikari

REPRESENTATIVE:  Mr Santosh Kunwar (MARN: 1807498)

CASE NUMBER:  2113921

HOME AFFAIRS REFERENCE(S):          BCC2021/1422090

MEMBER:T. Quinn

DATE:31 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2022 at 10:49am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – current enrolment – limited academic progress – course benefit to future career – impact of the COVID19 pandemic – maintaining ongoing residence in Australia – decision under review affirmed           

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. On 15 July 2021, the applicant applied for a Student visa[1] to undertake study in Australia (‘the application’).[2]

    [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

    [2]At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

  2. On 7 October 2021, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[3]

    [3]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

  3. On 11 October 2021, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

    [4] Pursuant to sections 338(2) and 347 of the Act.

  4. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to…

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AGLC
Adhikari (Migration) [2022] AATA 1484
Case
[2022] AATA 1484
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by a Nepalese citizen, Mr. Adhikari, against a decision to refuse his application for a Student (Temporary) (Class TU) visa, subclass 500. The primary dispute revolved around whether Mr. Adhikari was a "genuine student" and a "genuine temporary entrant" as required by migration law. The decision was heard by T. Quinn.

The court was required to determine if the applicant genuinely intended to study in Australia and if his proposed course of study would benefit his future career. A key issue was the applicant's academic progress in previous courses and whether his continued presence in Australia, particularly in light of the COVID-19 pandemic, indicated an intention to circumvent the migration program rather than pursue genuine study. The court also had to consider the relevance and application of a lawful Ministerial Direction to the applicant's circumstances.

The court acknowledged its obligation to consider the Ministerial Direction but affirmed its independence as a statutory body to reach its own conclusions on the merits of the case. The applicant, a 24-year-old Nepalese citizen, had been in Australia since April 2018 on successive student visas. The court found the applicant's explanation for his lack of academic progress in previous courses and the timing of his current application unpersuasive, raising concerns that he might be using the student visa program to maintain his residence in Australia. The court noted that the applicant's parents had invested significantly in his education and that he expressed a desire to assist with their business.

The court affirmed the decision under review, finding that the applicant had not satisfied the criteria for a genuine student and genuine temporary entrant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Direction is a lawful direction of the Minister.[5] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[6] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[7] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[8] [5] In accordance with section 499 of the Act. [6]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].[7]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).[8]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant in this case is a 24-year-old male Nepalese citizen who first arrived in Australia on 16 April 2018 on a student visa.[9] He has not returned to Nepal and has remained onshore since his arrival on a second student visa from August 2020-July 2021.[10] The applicant made the application which is the subject of this review the day before the expiry of his previous student visa.[11] This timing raises concerns about whether the applicant may be using the student visa migration program as a means of maintaining residence, in circumvention of the intentions of the migration programme. I raised this concern with the applicant at hearing and the applicant stated that he did not make progress in his previous two courses on his last student visa and then his visa was expiring soon and he remembered his parents’ business at home, that his parents had already spent a lot of money on him for his education and he wanted to help his parents out. I did not find this explanation persuasive and remain concerned about the timing of the applicant’s application, particularly given his previous lack of course progress.[9] See delegate’s decision and applicant’s response to the s359(2) letter.[10]See applicant’s response to the s359(2) letter.[11]See applicant’s response to the s359(2) letter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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