Bhattarai (Migration)

[2017] AATA 1313

Bhattarai (Migration) [2017] AATA 1313 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raju Bhattarai

CASE NUMBER:  1705284

DIBP REFERENCE(S):  BCC2016/3565961

MEMBER:John Cipolla

DATE:28 July 2017

PLACE OF DECISION:  Sydney

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 28 July 2017 at 10:31am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – Bachelor of Professional Accounting course – Cancelled twice for non-payment of fees and non-commencement of study – Familial responsibilities

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.212, cl 500.611

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 on 1 March 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 26 October 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 could not be satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal on 28 July 2017 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Recourse to the delegate’s decision record indicates as follows. The applicant arrived in Australia on 8 January 2008 as the holder of a Subclass 572 Student visa. The applicant has largely remained onshore in Australia since that time having made at the time of the Departmental decision four trips outside Australia. Upon the completion of Bachelor studies the applicant applied for and was granted a Subclass 485 visa to work as an Accountant. The evidence indicates that this visa was granted to the applicant on 28 April 2015 and was valid until 28 October 2016.

8. The delegate had regard to the Provider Registration International Student Management System (PRISMS) and made reference to the applicant’s enrolment history in their decision record. That history indicated that the applicant completed a Certificate IV in Business, a Diploma of Management, a Bachelor of Business, a General English language course, and was currently pursuing a Masters of Business Administration.

9. The PRISMS database indicated that the applicant’s enrolment in a Bachelor of Professional Accounting course had been cancelled on 2 occasions for non-payment of fees and twice for non-commencement of study.  The delegate noted that “you have been in Australia as a student and for work for the past 9 years. You have had ample time to study and achieve the academic qualifications you say you desire. You have not provided any reasons for desiring this course or how this course will assist you in your future career. This is concerning, as it gives the impression that your application for a further student visa was based more on your hope to remain in Australia rather than any sincere wish to achieve academically. Based on all the information I have available to me, I have serious concerns about your true intentions in Australia.”

10. The Tribunal conducted a review hearing on 28 July 2017 which was attended by the applicant. At the outset of the review hearing the Tribunal explained the applicant the process of merits review and the relevant issues in the review before the Tribunal. The applicant confirmed that he understood the process.

11. The applicant provided the Tribunal with his personal details. The Tribunal asked the applicant about his education history in Nepal. The applicant stated that he completed 12 years of schooling. He advised that in Nepal a student studies high school through to year 10 and in the last 2 years they are involved in vocational studies. The applicant stated that his vocational studies in the last 2 years of high school were management related.

12. The Tribunal asked the applicant about his parents in Nepal and what they did for work. The applicant stated that his father was a trained medical doctor and worked as a pharmacist and of the family also owns some rural land and undertook farming. He advised that his mother was a housewife and he described his family has been middle-class. The applicant advised that he had 4 sisters in Nepal who were all married and that he was the only male. The applicant advised the Tribunal that culturally the male son had responsibility for looking after his parents and it was his intention to return to Nepal at the completion of his current Masters studies.

13. The Tribunal asked the applicant about his academic history in Australia since he arrived in January 2008. The applicant stated that he completed a Certificate IV in Business followed by a Diploma of Management at which time he applied for a further Student visa. The applicant stated that between March 2010 and July 2013 he attempted to complete a Bachelor of Professional Accounting degree and that he successfully completed 16 out of 24 subjects but struggled to complete the remaining subjects. The Tribunal asked the applicant whether there were any reasons for this and the applicant stated that his grandmother passed away in Nepal during that period and that he was very close to his grandmother and he was somewhat depressed after her death. The applicant stated that he then went on to complete a Bachelor of Business and that he was given significant credits for his previous studies in the Bachelor of Professional Accounting.

14. The applicant advised he was currently studying a Masters of Business Administration. The applicant advised the Tribunal that he was pursuing this course of study because on a recent visit to Nepal he had been advised that positions in finance, management and banking were extremely competitive and that in order to have an edge a job applicant needed to complete Masters studies. The applicant advised that he was on track to complete his Masters of Business Administration in March 2018.

15. The applicant advised that during the time that he had been in Australia he had married his Nepalese wife who eventually joined him in Australia and that they had a 15 month old son who was born in Australia. He advised that his wife and son had now returned to Nepal where they had greater levels of family support. The applicant stated that upon completion of his studies he would return to resume living with his wife and son in Nepal. The applicant reiterated that as the only son of his parents he had familial responsibilities to his parents and that he had no intention to remain in Australia on a permanent basis. To this end the applicant advised that he had previously applied for a Subclass 485 skilled visa which could have led him down the pathway to permanent residence but the applicant had decided not to pursue permanent residence because of his obligations to his parents and the need for him to return to Nepal upon the completion of his studies.

16. The Tribunal asked the applicant whether he had a tax file number and the applicant confirmed he did. The Tribunal asked the applicant if the Tribunal was to contact the Australian Tax Office what evidence would exist pertaining to his work history in Australia. The applicant stated that he had only work 20 hours a week whilst he had been in Australia and that he had been with Coles supermarkets in Manly for the past 9 years. The applicant stated that he had been given substantial financial support from his parents in Nepal with regard to payment of his education expenses and to assist with his living expenses in Australia.

17. 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 applicant for entry and stay as a student.

    Genuine applicant for entry and stay as a student (cl.500.212)

18. 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?

19. 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.

20. 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.

21. Having regard to the applicant’s study history since he has been in Australia the evidence before the Tribunal indicates that the applicant has successfully completed a number of courses of study. The evidence indicates that the applicant had some difficulty completing a Bachelor of Professional Accounting course but during the period that he was engaged in this study he successfully completed 16/24 subjects and then went on to complete a Bachelor of Business for which he received a significant number of subject credits due to past study. The applicant’s study history from high school indicates an interest in management related courses and the applicant’s course of study in Australia has had a consistent theme to it pertaining to management, finance, and banking. The applicant advised that it is his intention to return to Nepal upon completion of his Masters studies in March 2018. The Tribunal is satisfied that the applicant will return to Nepal as his wife and child are currently residing back in Nepal the applicant advised the Tribunal that he has ongoing familial responsibilities to his parents as their only son.

22. 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).

    Does the applicant intend to comply with visa conditions?

23. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

24. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

25. The evidence before the Tribunal indicates that the applicant has worked 20 hours a week in accordance with the conditions attached to his student visa. Having regard to the applicant’s study history during the period that he has been in Australia the Tribunal finds that the applicant has made satisfactory course progress, apart from in his bachelor of professional accounting, however the evidence indicates that he successfully completed 16/24 subjects. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

26. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

27. As has been noted above the applicant has a wife and child who are currently residing with family in Nepal and the Tribunal finds that this is sufficient incentive for the applicant to return to Nepal upon completion of his Masters studies in March 2018. Further to this the applicant has explained that culturally it is his responsibility as the only son of his parents to provide support to his parents in their old age and that he fully intends to comply with this requirement. Further to this the applicant advised that he had previously held a Subclass 485 Temporary Skilled visa which could have segued into permanent residence but the applicant did not pursue this as it is his full intention to return to Nepal at the end of his current course of study.

28. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

29. 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

30. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    John Cipolla
    Senior Member