Basnet (Migration)

[2018] AATA 4690

Basnet (Migration) [2018] AATA 4690 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabesh Basnet

CASE NUMBER:  1710646

HOME AFFAIRS REFERENCE(S):           BCC2016/4409124

MEMBER:Penelope Hunter

DATE:10 October 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 10 October 2018 at 9:14am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant criteria – poor academic history – substantial time to complete Bachelor’s degree – living with Australian citizen sister – MBA study to improve career prospects – credibility issues – studies ceased while awaiting review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 5 May 2017 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 for the visa on 30 December 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied the applicant with a genuine applicant for entry and stay Australia temporarily as a student.

   BACKGROUND

   Application to the Department

4. The applicant is a citizen of Nepal, and arrived in Australia on 15 July 2008. He applied for the visa in order to undertake a Master of Business Administration at the Holmes Institute, with course dates from 13 March 2017 to 31 July 2018.

5. The applicant had completed secondary education in Nepal. In Australia he had undertaken a Diploma of Management (2010), a Diploma of Business (2012) and a Bachelor of Business and Commerce (2014). Prior to applying for the visa under review the applicant was the holder of a subclass 485 visa.

6. In a statement that accompanied his visa application the applicant set out the following information;

   i.He enrolled in a Diploma in Accounting at Crown Institute of Business Technology in early 2011. The Crown Institute decided to discontinue their accounting program and he was provided with an option either to transfer to a Diploma in Management or transfer to another education provider. He decided to stay at the Crown Institute and undertook the Diploma in Management rather than changing education provider. In time he encountered and engineering course, Diploma of Engineering (accelerated), a one-year course pathway to 2^nd year at university. He chose the course however could not continue and give it full concentration as an engineering student because of a car accident on 30 October 2010. The study load of five units per semester was not handled due to the accident, psychological and mental trauma. The applicant provided email correspondence with AAMI regarding the accident.

   ii.The applicant then changed enrolment to a Diploma in Business because he had a good foundation of knowledge in business and commerce from his previous studies. He enrolled at the UTS Insearch. At the time he was living with his sister, she suddenly fell sick for nearly 6 months around June 2011. Initially doctors could not identify the real reason for regular episodes of fainting, chest pain and weakness. He had a duty to care for his sister in difficult circumstances and this impacted on his mental stress. The applicant submitted medical evidence of treatment sought by his sister. At this time, he did not leave his studies and completed the course in May 2012.

   iii.He commenced the Bachelor of Business and Commerce (accounting) at the University of Western Sydney in July 2012 where he received 40 credit points (advanced standing) from Diploma in Management. In autumn 2013 he had to withdraw because of a severe illness for a long period, a re-occurrence and surgery of ear infection ( the applicant submitted doctors certificates and medical records). The applicant was granted a withdrawal after the census date without academic penalty. In October 2013 he had an eye infection was treated at Sydney Eye Hospital (medical records attached). He enrolled in summer school at the end of 2013 committee completed units in the third week of February 2014. In 2015 his parents visited Australia to attend his graduation ceremony.

   iv.After he completed his Bachelor degree he decided to gain some work experience in accounting in Australia and applied for a subclass 485 visa. He did an internship with Aussie Tax Returns for three months as an assistant accountant. In addition he did some research about current working conditions in Nepal and realise that a Bachelor degree was inadequate to get the job or establish a small firm in Nepal.

   v.He came to a decision to study a Master of Business Administration (MBA). The MBA is the first choice of Management students who want to make their career in business administration and management, and it provides graduates with endless capabilities and expertise to run, manage and handle businesses and other factors involved in running businesses. MBA graduates are hired to manage and run all sorts of business and organisations in Nepal. The scope for MBA graduates in Nepal in terms of career prospects and professional development was increasing and expanded. The earnings would be very good and competitive for senior executive level management positions.

   vi.In Nepal the education system is based on theory which had no link with practical applications and fieldwork. In Australia the quality of education was exceptional, practical based and recognised worldwide.

   vii.He considered that the Holmes Institute was one of the best education providers in Sydney. He wished to study there because of quality education, excellence and learning, qualified staff and team members. International graduates were highly valued and paid good money in his country.

   viii.As a son he has a huge responsibility to look after his parents. He has to look after his properties in Nepal as well. He had to return after completing his studies to support his family. He was frequently in touch with them. He had not visited Nepal frequently due to his study commitments, and most importantly his health conditions and those of his sister. He had visited his parents once in 2013 and they visited him in 2015.

   Tribunal Application

7. Prior to the Tribunal hearing the agent for the applicant submitted the following documents;

   ix.Priyanka Basnet Medical documents 2011, including letter from the Mater hospital, St George Emergency, Neutral Bay Medical Centre, Imaging. 

   x.Priyanka Basnet Medical documents 2014.

   xi.Priyanka Basnet Medical documents 2015.

   xii.Priyanka Basnet Medical documents 2016.

   xiii.Priyanka Basnet Medical documents 2017.

   xiv.Offer of employment for the applicant.

   xv.Evidence of car accident including tax invoice, email from claims officer, photographs and correspondence with insurer, application to the Local Court Kogarah, Notice of Listing date from the Office of State Revenue, Examination notice from Brown & Brown lawyers.

   xvi.UTS appeal letter and personal statement dated July 2012.  

   xvii.Letter from specialist confirming surgery on 27 May 2013 and excusing the applicant from attending university on that day.

   xviii.Good Standing- Academic Panel from the University of Western Sydney, W Grade application, academic history, academic transcript, student welfare emails  and complaints report.

   xix.Applicant’s portfolio from the University of Western Sydney.

   xx.Evidence of parent’s travel and visa grants, and mother medical report.

   xxi.Letter confirming work experience (voluntary internship), and performance review, Queensland Business Academy.

   xxii.Letter confirming work experience (voluntary internship), and performance review. Sydney City College Management employee award and employment reference dated 14 June 2018.

   xxiii.Letter of offer of enrolment in a Masters of Business Administration at Group Colleges Australia commencing 27 August 2018 and concluding on 21 August 2020.

   xxiv.UNESCO paper, Gender, Jobs and Education.

   xxv.Submissions regarding errors in the delegate’s report.

8. In a letter of submission  by the applicant’s agent the following relevant information was provided ;

   i.Reference was made to the UNESCO article submitted and it was claimed that the applicant has strong ties to his home country as both his parents were living in Nepal, and as the only son, according to cultural norms he had a responsibility to take care of his parents. The applicant claimed to assist his parents looking after their properties and assets and a Valuation Report was submitted.

   ii.The applicant was aware that he has spent a significant time in Australia however the changes in his courses are related to his professional work experience, during which he realised that his Bachelor’s degree was inadequate for him to get a job in Nepal.

   iii.The applicant’s lower academic performance can be attributed to health issues he has faced, and his sister and legal issues surrounding his vehicle.

   iv.The applicant’s sister is an Australian citizen and resides in Australia permanently. She is married and no longer living with the applicant. The cultural values dictate that the men in the family look after the women until they are married following which the husband of the woman becomes the primary caretaker and she spends less time with her family.

   v.The applicant had provided an offer of employment with Integrated Mobility Solutions Pvt Ltd in Nepal which was dependent upon him completing the MBA. There was therefore value in the applicant completing the course.

   vi.The applicant’s employment reference letter from Sydney City College of Management for his position of accounts officer demonstrate that the employment fell within the field of business and finance and his enrolment in the MBA would further this knowledge.

   vii.The MBA is a highly sought after degree that increases the applicant’s job prospects. It was through professional work experience that the applicant had come to realise its value for his future career.

9. The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments.

10. The applicant was assisted in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 satisfies cl. 500.212.

13. 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?

14. 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.

15. 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.

16. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

17. Despite claiming that the proposed MBA would improve his employment prospects and professional abilities, and it was a considered career plan, the applicant did not continue with his enrolment and has not engaged in study while awaiting review. The applicant blamed this on the uncertainty with respect to whether he would obtain the visa, he also claimed that he was depressed. Yet the Tribunal also notes that the applicant continued to remain in Australia and work while awaiting review.  There is also no medical evidence to support his claims of depression, although the applicant has significant medical evidence for several years of his time in Australia. It is acknowledged that the applicant had obtained an offer of enrolment at the Tribunal hearing, and has now provided evidence of enrolment following issues raised at the hearing regarding satisfaction of cl. 500.211 of the Regulations, and the requirement of enrolment for the grant of the visa. However, having regard to the applicant’s study history, his claims about having an offer of employment from Integrated Mobility Solutions Pvt Ltd in his home country upon completion of the qualification, and desire to support his parents, the Tribunal considers that if the submissions of the applicant regarding the value of his course were credible, a genuine student in these circumstances would have proceeded with their study. On the evidence the Tribunal found it difficult to understand, given the expectation that the applicant claimed his family had of him for his study and the career and economic circumstances of the applicant, as was presented to the Tribunal, why he had not continued with his study. It is further noted that the applicant would have already completed the course before his hearing, had his study been untaken.

18. While not determinative the Tribunal has also had regard to the length of time that the applicant has spent studying in Australia. He arrived in 2008, and has made only one visit to his home country in that time. While it is acknowledged that the applicant has progressed in his studies, the Tribunal considers that the length of time that the applicant has spent onshore may indicate that he considers Australia as a place in which he wishes to live and not just obtain academic qualifications.

19. The applicant claimed that the education system in Nepal was more academic, while in Australia the courses were delivered in a style that was more practical. This may be true of the Elicos level and the Vocational Education and Training (VET) level at which the applicant commenced his studies in Australia, however the applicant is now proposing study at a Masters Level, which is a higher academic level. He has claimed that the delivery method was the reason that he wished to study at the Holmes Institute, yet the applicant did not proceed with that enrolment, and could not in his evidence enlighten the Tribunal as to the benefits of the current course at Group Colleges Australia. Although the Tribunal does note that this course will take the applicant 2 years to complete, as opposed to 15 months at the Holmes Institute. The applicant has taken considerable time to complete his VET study and his Bachelor degree. The Tribunal has considered the evidence submitted by the applicant regarding his motor vehicle accident, his sister’s illness and his own medical conditions. It is accepted that there were such incidents. However his documents also demonstrated that his sister’s condition had largely stabilised by 2012, although it is accepted that her hernia operation in 2015 caused disruption. His evidence at the hearing was that he did not sustain injury in his motor vehicle accidence, rather had to pay an excess and had to find new employment as he was a delivery driver.  Court proceedings related to traffic matters. There is no evidence psychological and mental trauma endured by the applicant as claimed. It is accepted that after 2014, both the applicant and his sister had some medical issues. The applicant having incidents of ear infection, gastro and eye infection. The applicant conceded in evidence at the hearing that notwithstanding his personal issues he had struggled with completing his higher education in Australia. It had taken six years for him to complete his Bachelor’s qualification.  In these circumstances, where the applicant has already obtained tertiary qualifications and he has not yet applied himself to the MBA, the Tribunal is not satisfied that the applicant has reasonable reasons for not undertaking the relevant study in his home country.

20. The Tribunal has considered the applicant’s circumstances in his home country and the UNESCO article submitted by the applicant. It is accepted that the applicant has his parents in his home country, that they own property and this may act as an incentive for him to return. The Tribunal however must balance this on the facts that the applicant has returned only once since 2008 to his home country and since that time has been living independently in Australia.  He told the Tribunal at the hearing that his parents are retired and that his mother has health conditions, and it was submitted that they needed his assistance to look after their assets. Yet the fact is that the applicant has not been studying while awaiting a review, he did not return to look after his parents, there is no evidence he has any involvement in the management of their assets and he now proposes to use the student visa program to extend his stay in Australia for a further two years. While acknowledging that culturally some Nepalese males may continue to live in their parent’s home, the Tribunal is not persuaded on the evidence that this is the situation for the applicant. The applicant already has a much higher level of education than many of the participants in the UNESCO article, he has also studied overseas. The Tribunal notes that the article also largely centres on gender issues in education and obstacles to female education, particularly at the secondary level.

1. The Tribunal also considered the letter of job offer submitted by the applicant from Integrated Mobility Solutions Pvt Ltd. The applicant confirmed at the hearing that the offer no longer exists, given the time that has passed. The Tribunal therefore gives this offer no weight in assessing the value of the course to his future. Of additional concerns was the fact that although the applicant was questioned about opportunities in his home country based on his current qualifications, the applicant gave unconvincing evidence as to whether he had explored his ability to undertake the position based on his current qualifications, or source any other employment and just claimed this was not possible. The Tribunal is not satisfied that the applicant has demonstrated that his existing qualifications were inadequate for him to obtain employment in Nepal or that the applicant had demonstrated the benefit that undertaking the proposed courses in Australia would have to his career prospects.  While acknowledging that the qualification is a progression in the applicant’s studies, the Tribunal is not satisfied that he has demonstrated the value of the course to his future, given the time that has now passed, and the potential costs involved, relative to average income in Nepal as disclosed in the UNESCO report submitted.[1] Further the report submitted shows that employment for males of the applicant’s age is high. [2]It is claimed that  during his work experience in Australia the applicant determined the value of further education, yet aside from the letter from Integrated Mobility Solutions Pvt Ltd, the applicant has not demonstrated that he had sought employment in Nepal at the conclusion of his subclass 485 visa or prior to applying to undertake further study.

   [1] Sushan Acharya, Gender Jobs and Education – Prospects and Realities in Nepal – UNESCO publication dated 2014, average monthly earnings for males in 2008, 5721 Nepalese rupee or USD 58.35  at page 34

   [2] As above at page 22, urban males 91.3 % which increases to 30% for males over 30 years of age.

2. There is no evidence that the applicant has any military service obligations and the Tribunal accepts the claim that there are no incidents of civil or political disturbance that would act as an incentive for the applicant to remain in Australia.

3. The applicant’s circumstances in Australia are that he has his sister onshore with him. His sister has now obtained Australian citizenship.  She also came initially to Australia on a student visa, like the applicant and it was his evidence that she obtained residency based on the education and qualifications she obtained in Australia. Although the agent of the applicant submitted that the applicant was no longer living with his sister, the applicant told the Tribunal at the hearing that he continued to reside with her despite her marriage in 2017. Although the agent for the applicant submitted that once she was married his sister became the concern of her husband, the applicant has submitted medical evidence for her conditions in 2017, to support his claims. From his claims the applicant is evidently very close to his sister, his has provided that his concern and carer responsibilities for her impacted upon his ability to study.  The Tribunal is not satisfied that in the applicant’s circumstances cultural norms are dictating that he spends less time with his sister and the Tribunal considered that this family tie would act as a strong incentive for the applicant to remain in Australia. The applicant has also obtained a variety of relevant work experience and employment relative to his qualifications in Australia that would assist his employment in the labour market in his home country and also in Australia. Given the time that the applicant has spent onshore, it is considered that he would have developed some social and community ties.  

4. It is accepted that there is no information before the Tribunal that the applicant has previously been refused a visa from any country or had a visa considered for cancellation. While the Tribunal notes that the applicant has in the past had issued with academic performance, he has successfully appealed any adverse findings from his education providers and the Tribunal is satisfied that he has not breached any conditions of his previous visas.

5. Having considered the evidence of the applicant cumulatively against the factors specified in Direction No. 69, including that the applicant has family ties and family property in Nepal, that his proposed study is a progression in his qualifications and his claims that it will improve his career prospects, the Tribunal finds that the applicant’s potential circumstances in Australia may provide incentives for them to remain in Australia for purposes other than that of a genuine student.

6. Therefore, on the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

7. 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.

8. Given the above 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. Accordingly, the decision under review must be affirmed.

   DECISION

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

   Penelope Hunter
   Member