Chamlagain (Migration)

[2019] AATA 2222

Chamlagain (Migration) [2019] AATA 2222 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramjee Chamlagain

CASE NUMBER:  1725434

HOME AFFAIRS REFERENCE(S):           BCC2017/3052406

MEMBER:M. Edgoose

DATE:6 March 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 06 March 2019 at 3:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine intention to stay in Australia temporarily – member of the family unit of person who holds a student visa – immigration history – incentive to return to home country – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.312

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 13 October 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 24 August 2017. 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.500.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa.

4. The applicant appeared before the Tribunal on 25 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Asma Karki, the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The secondary criteria in cl.500.3 must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa and intends to stay in Australia temporarily.

8. Clause 500.312 requires as follows:

   The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, 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?

9. In considering whether the applicant satisfies cl.500.312(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.

10. 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.

11. The applicant first arrived in Australia on 8 March 2014 on a 573 Student visa. Since arriving in Australia the applicant stated at hearing that he has only completed a short English for Academic Purposes course through Deakin University between 24 March 2014 and 2 May 2014 (DIBP Folio 64). In the second short English for Academic Purposes course through Deakin University (DIBP Folio 63) that the applicant attempted, he achieved an overall unsatisfactory result. The Tribunal notes that on both of the Statements of Attainment submitted to the Department by the applicant state that the applicant’s attendance in the courses was unsatisfactory. While the Tribunal understands that the applicant does not propose to study, his past behaviour while on a student visa is relevant to assessing his current intentions.

12. The applicant confirmed at hearing that he has only departed Australia on one occasion since arriving in Australia on 8 March 2014. The applicant informed the Tribunal that he departed Australia on 23 November 2018 until 23 December 2018 when he and his wife returned to Nepal for a traditional marriage ceremony. The applicant submitted photos (AAT Folios 28–30) of the traditional marriage ceremony back in Nepal. The Tribunal asked the applicant whether he considered himself to be a genuine temporary entrant. The applicant responded to the Tribunal that he is now only in Australia to support his wife while she completes her Bachelor of Nursing. The Tribunal does not accept the applicant remaining in Australia to support his wife while completing her Bachelor of Nursing as a relevant consideration. The Tribunal informed the applicant at hearing that under cl.500.312 he was not required to be enrolled in a course of study however the Tribunal is concerned about whether he is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa.

13. As the applicant is not required to be enrolled in a course of study the Tribunal has found the following factors in Direction 69 to be neutral:

    ·whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant (cl.9(a));

    ·whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country (cl.12(a));

    ·relevance of the course to the student’s past or proposed future employment either in their home country or a third country (cl.12(b));

    ·remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study (cl.12(c)); and

    ·the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider, including previous study and qualifications; what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements (cl.11(e)).

14. The applicant submitted to the Department (DIBP Folio 88) his wife’s Confirmation of Enrolment for a Bachelor of Nursing through Australian Catholic University which commenced on 6 February 2017 and is due to be completed by 31 December 2019 at a cost of AUD60,400. The applicant also submitted his wife’s Academic Transcript (AAT Folios 24–25) as at 12 February 2019 and that she has Semester 1 2019 and Semester 2 2019 to go to complete the course. The academic transcript states they are “In Progress”. The Tribunal accepts that the applicant’s wife is currently enrolled in a registered course. At hearing the applicant stated on a number of occasions that as soon as his wife completes her course in December 2019 they will depart Australia and return to Nepal where his wife will find a job in the nursing profession and the applicant plans to complete a Bachelor of Public Health. Considering the applicant’s poor study record in Australia the Tribunal has serious doubts about the applicant’s future study plans back in Nepal, however the Tribunal acknowledges that the applicant’s wife’s future career direction as a nurse is in line with her current course.

15. The applicant informed the Tribunal that before coming to Australia he had completed a Diploma of Health Science in 2013 and had worked in a Health Centre where he was paid the equivalent of AUD185 per month. The applicant informed the Tribunal that he and his wife live in shared accommodation in Coburg and contribute AUD700 per month towards the rent. The applicant said that he works 20 hours part-time at a car wash and is paid AUD17 per hour and that his wife works 20 hours part-time in aged care and is paid AUD23 per hour. The Tribunal finds that the economic circumstances within Australia of the applicant where he earns AUD340 per week and his wife earns AUD460 per week compared to his earnings of AUD185 per month back in Nepal before coming to Australia in March 2014 would present a strong incentive for the applicant not to return to Nepal due to the combined income of both the applicant and his wife in Australia.

16. The applicant informed the Tribunal that his parents and two brothers and one sister live back in Nepal and another brother lives in Qatar. The applicant stated that he contacts his family twice a week via telephone and video call. In these circumstances, the Tribunal does not consider the applicant’s personal ties to his home country serve as a significant incentive to return to his home country.

17. The applicant stated to the Tribunal that he has no issues of concern, military service commitments or political and civil unrest back in Nepal. The Tribunal accepts the applicant is not attempting to stay in Australia to avoid these matters.

18. As the hearing progressed the applicant informed the Tribunal that his wife is pregnant and that the baby is due at the end of August. The Tribunal enquired with the applicant that as a result of his wife expecting the baby at the end of August would his wife still complete her Bachelor of Nursing by 31 December 2019. In the first instance the applicant responded yes she will complete her studies by the end of 2019. As the discussion progressed the applicant’s response changed to possibly by the middle of 2020 as his wife will need time off from study to look after the baby. The Tribunal, given the applicant’s changing answers regarding his wife’s expected time of completing the Bachelor of Nursing as per the COE, has serious doubts about the applicant’s future plans and about him being a genuine temporary entrant. The Tribunal in reaching this finding has also taken into account that the applicant has only spent one month outside of Australia since arriving on 8 March 2014. Therefore the Tribunal considers from the evidence given at hearing that the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia. 

19. The applicant provided the Tribunal the following evidence regarding the applicant’s wife’s pregnancy: a doctor’s letter (AAT Folio 31) which stated “This is to advise that the above named patient is presently pregnant. Her EDD is on 30 August 2019.” and an ultrasound report and photo dated 20 February 2019 (AAT Folio 32). The Tribunal accepts the evidence.

20. The applicant’s wife stated at hearing to the Tribunal that she is in her final year of her Bachelor of Nursing course and that she needs her husband to support her in Australia throughout her pregnancy and in finishing her studies. The applicant’s wife stated that she will finish her studies by 31 December 2019 and that she has 440 hours to complete including placements. After stating to the Tribunal that she will complete her studies by 31 December 2019 her evidence changed to that she plans to extend her COE for 6 months after the pregnancy. The Tribunal thanked the applicant’s wife for her comments.

21. The applicant stated that on their return to Nepal his wife will find a job in the nursing profession and he plans to complete a Bachelor of Public Health. The Tribunal is concerned the applicant’s future plans do not lie outside of Australia given that he has been in Australia since 8 March 2014 and has only returned to Nepal for approximately one month since arriving. The Tribunal finds that the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.

22. 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.500.312(a).

23. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa as required by cl.500.312.

24. 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

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

    M. Edgoose
    Member