Gajurel (Migration)

[2018] AATA 2617

Gajurel (Migration) [2018] AATA 2617 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arbin Gajurel

CASE NUMBER:  1618287

HOME AFFAIRS REFERENCE(S):         BCC2016/2862642

MEMBER:Wendy Banfield

DATE:13 June 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 13 June 2018 at 11:02am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Strong incentives to remain in Australia – Lack of academic progression – Where applicant has focused on work instead of studies – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 376, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212, Schedule 8, Condition 8516

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 20 October 2016 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 29 August 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 applicant did not meet the criteria of a genuine temporary entrant for study.

   Background

4. The applicant is a citizen of Nepal and is currently 24 years old. He came to Australia on 20 June 2013 as the holder of a Subclass 573 student visa. At the time the applicant applied for the visa which is the subject of this review he was enrolled to study a Bachelor of Professional Accounting. His enrolment in a Bachelor of Business degree had been cancelled previously for non-payment of fees. This was a breach of the conditions of the previous student visa and part of the reason for the current visa being refused by the Department.

5. In a decision record dated 20 October 2016 the Department refused the visa for the following reasons:

   ·     The applicant was excluded from his Bachelor of Business course for non-payment of fees, in breach of condition 8516;

   ·     The applicant’s proposed Bachelor of Professional Accounting involved significant cost and the delegate was not satisfied the applicant would maintain enrolment;

   ·     The applicant did not provide evidence of employment prospects in his own country or specific plans for future employment;

   ·     Generic reasons were provided regarding the benefits of the qualification;

   ·     The delegate was not satisfied the applicant would comply with visa conditions in future.

6. The applicant appeared before the Tribunal on 15 December 2017 to give evidence and present arguments.

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

   Evidence of the visa applicant

8. The applicant said he is currently enrolled at Holmes Institute to take a Bachelor of Professional Accounting. He declared he was studying but did have a gap due to health issues. The course started in August 2016 and he had taken six units over three semesters. The applicant took exams but did not pass any subjects. He declared he now has to finish the whole course in one and a half years and expects to complete it by March 2019.

9. The applicant has finished a Diploma of Business (Accounting). He said he was awarded credits for 8 subjects and began a Business degree at UTS. However, his COE was cancelled because of non-payment of fees. The applicant said he had cash problems and there was an issue with money coming through from Nepal. The applicant claimed that initially when he learnt his COE was cancelled he was advised to sort out the matter with the university. He said he offered to pay two semesters but since he had failed his subjects and was also seeing a doctor, it was claimed the university were not satisfied he would progress in his studies. The applicant claimed that until July 2016 he attempted to re-enrol but was unable to.

10. The Tribunal advised the applicant that according to the PRISM record, he is not currently enrolled in a course of study. He said that was correct but he had been enrolled a year previously. He said he tried to get enrolled last semester but was told to come back for the following semester. He was expecting to get a new COE once the college is able to process them. According to the applicant, he had studied until July 2017 but had not been able to continue due to medical reasons. The applicant first claimed that he was granted a deferment from his studies but then said he had been seven days late in seeking a deferment and he was unable to enrol in the next semester.

11. The applicant said he had wanted to continue his study at UTS but he was unable to and had to change institution. He said it was important for him to obtain a degree from Australia. Regarding not paying the course fees as required, the applicant referred to the earthquake that occurred in Nepal in 2015. The applicant said he had trouble obtaining the funds for his education and was also depressed about the situation.

12. Prior to leaving Nepal, the applicant had completed high school and decided to come to Australia to study as it would help him find employment. According to the applicant there is a stable government and growing economy in his own country and he is confident of finding a good job. The applicant has parents and a sister in Nepal and two married sisters in Australia. The applicant declared he was supported in Australia by his parents and a sister who helps him. He advised he has also worked as a Manager at Woolworths after beginning in night fill and progressing to a part-time manager position.

13. The applicant claimed he has to return to Nepal to look after his family and he expects a degree from Australia will help him to find employment in the area where he lives. The applicant has not returned to Nepal since he arrived in Australia but said his family have visited him. According to the applicant he is a genuine student and claimed he had a lot of options to stay in Australia but wants to finish his studies. When asked to explain what he meant, the applicant said he could have applied for other visas but wanted to finish what he started. The applicant said he recently got married and his wife is also studying in Australia.

    Representative’s submission

14. Mr Khanal said the applicant is not currently enrolled, although he had been until July 2017. Because of his health issues he was late enrolling and was told to obtain a medical certificate. When the applicant tried to get a COE prior to the hearing he was told that the college was busy with graduations and he had to come back. According to Mr Khanal the applicant needs another 18 months to finish the course. It was claimed the applicant did in fact appeal the decision by UTS to exclude him and the Tribunal was referred to an email submitted in evidence.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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 student who meets the criteria of a genuine temporary entrant for study.

17. 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?

18. 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.

19. 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.

20. The applicant’s circumstances in his home country are that he has completed high school but does not appear to have been employed prior to coming to Australia to study. His parents and one sister continue to reside in Nepal. At the time of the Tribunal hearing the applicant had not returned to Nepal since arriving in Australia on 20 June 2013 although he declared his parents have visited him in Australia. The applicant has claimed Nepal now has a stable government and growing economy and he is hopeful of finding a job on his return.

21. In Australia the applicant has two married sisters, one of whom he said provides him with support. According to the applicant’s evidence he has worked as a supermarket manager after beginning with night fill work.  The Tribunal considers these circumstances, together with the length of time the applicant has spent in Australia to be incentives to remain.

22. The applicant explained his failure to maintain enrolment as being due to difficulty paying fees. In this regard he provided email evidence of his communications with UTS regarding his enrolment and their rejection of his application. The Tribunal is not satisfied the university refused to enrol him based only on non-payment of fees. From the email evidence submitted between the applicant and UTS, he was required to provide a GTE statement that included an explanation of what he had been doing since discontinuing studies at UTS and evidence of how his expenses of $18,500 per year for two years would be covered. The applicant did not provide the Tribunal with his submissions to UTS but the university advised the applicant on 26 July 2016 that he did not meet the GTE requirements.

23. The applicant declared that gaps in his study were caused by ill health and the inability to re-enrol in his Bachelor degree. A medical certificate dated 27 October 2017 in which the applicant was referred for depression says the applicant “reported experiencing workplace stress leading to depleted motivation, flat mood, lack of energy and difficulties with concentration and memory.” The applicant’s other medical evidence consists of documents relating to a workplace injury to his finger and treatment for back pain due to his work. The Tribunal is not satisfied the applicant’s primary motive in Australia has been to study and considers his lack of academic progress was due to focussing on work as a supermarket manager. A Psychological Support Letter dated 14 December 2017 states the applicant has been suffering from depression but is now prepared to commit to his studies. The Tribunal is not satisfied based on the applicant’s past history that he will in fact be able to maintain enrolment or succeed academically.

24. The Tribunal takes into account the courses the applicant has completed to date but considers his lack of achievement over five years to be unsatisfactory for a student whose primary concern should be to progress in his studies. Regarding his future plans, the applicant was only able to give generic responses which involved returning to Nepal and finding a job. There is no evidence he has investigated any options and the length of time he has spent away from the country, along with a lack of work experience in the his field of study indicates he has no defined plans for returning to Nepal.

25. 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).

26. 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.

    Other matters

27. The Department issued a Certificate and Notification under s.376 of the Migration Act regarding the applicant being charged with an offence by New South Wales Police. The Tribunal’s use and disclosure of the information covered by the Certificate is subject to the provisions of s.376(3). That provision relevantly states that the Tribunal may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information and may, if the Tribunal thinks it appropriate to do so, disclose any matter contained in the document, or the information, to the applicant.

28. The Tribunal has considered the Certificate and information contained in it and decided it is not relevant to consideration of whether the applicant is a genuine student. Therefore the Tribunal places no weight on the information contained in the Certificate and it forms no part of the decision in this case.

29. 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

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

    Wendy Banfield
    Member