Giri (Migration)

[2018] AATA 5907

Giri (Migration) [2018] AATA 5907 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bibek Giri

CASE NUMBER:  1703905

HOME AFFAIRS REFERENCE(S):           BCC2016/3152449

MEMBER:Wendy Banfield

DATE:19 November 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 19 November 2018 at 5:28pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine temporary entrant criterion not met – enrolled in a lower level course –maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 15 February 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 22 September 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Nepal and is currently 29 years old. He came to Australia in 2009 as the holder of a Subclass 572 Student Visa. Since arriving in Australia the applicant has completed a Diploma of Business Administration, Bachelor of Professional Accounting, General English and Master of Business Administration. At the time of application the applicant was enrolled to study a Diploma of Leadership and Management however at the time of the hearing, the applicant was studying a Diploma of Human Resources Management. While in Australia the applicant has also held Subclass 573 Student Visas and a Subclass 485 Temporary Graduate Visa.

5. The applicant appeared before the Tribunal on 17 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. Evidence of the visa applicant

7. Prior to the hearing the applicant submitted the following evidence in support of his application for review:

   ·     Evidence of educational background in Nepal;

   ·     Evidence of previous studies in Australia including COEs;

   ·     Letter of offer for a Master of Business Administration at Holmes College dated 10 February 2015;

   ·     Evidence demonstrating financial support;

   ·     Certificate of Employment dated 14 November 2016 from Hurricane’s Corporate Services;

   ·     Written statement dated 6 March 2017 and Statement of Purpose (undated);

   ·     Certificate of Skilled Migration Internship Program dated 12 January 2016;

   ·     COE for a Diploma of Human Resource Management course from 21 August 2017 to 19 August 2018.

8. The applicant had provided evidence to the Department that has also been considered. This consisted of: evidence of previous studies, written statement, financial documents including evidence of property ownership in Nepal, letter of offer of employment, curriculum vitae and relationship Certificate.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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?

12. 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.

13. 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.

14. The applicant submitted evidence regarding his circumstances in his home country and in Australia. According to the applicant he had a house and his family have property in his home country. The applicant declared he wants to find employment in the financial or banking sector on his return to Nepal, however, he has also claimed he wants to open a café or restaurant. The applicant’s parents and siblings live in Nepal and he declared no relatives in Australia. The applicant arrived in Australia on 17 January 2009 and has returned to his home country on three occasions as of the date of the hearing. The Tribunal accepts the applicant has family in Nepal and some ongoing ties, however, the Tribunal is not satisfied this is a strong incentive for him to return after completing his studies.

15. The applicant has resided in Australia for 9 years at the time of the hearing and has been employed in the hospitality industry as evidenced by his Statement of Employment. The Tribunal considers that since his arrival, the applicant has developed ties to Australia which would act as an incentive to remain. This finding is supported by the applicant’s continuation of his studies at a Diploma level when he has already obtained post-graduate qualifications.

16. The applicant has completed a Bachelor degree and an MBA in Australia and at the time of the hearing, was enrolled in a lower level course in Human Resources. The applicant claimed he had enrolled in a Diploma of Leadership and Management to enhance his employability and because of an interest in leadership and management roles. According to the applicant’s written statement to the Tribunal, after his visa was refused, he changed his enrolment to Human Resources because it is the foundation of an organisation. The applicant also stated employers wish to hire people who have knowledge and experience in different sectors. The Tribunal has considered the applicant’s claims in this regard but is not satisfied the applicant’s career prospects will be improved by undertaking a course at a lower level since he already holds a Bachelor and a Master’s degree. In addition, Human Resource Management is a profession in itself and does not follow naturally from Accounting and an MBA.

17. The applicant has not indicated an intention to find employment in Human Resources even though the course he has enrolled in states it is specifically for that purpose. The Diploma of Human Resources Management Course Information at Canberra Business and Technology College states:

    This qualification reflects the role of individuals working within the human resources sector, who have a sound theoretical knowledge base in human resources management and demonstrate a range of managerial skills to ensure that human resources functions are effectively conducted in an organisation or business area.

18. The applicant submitted a letter of offer of employment to the Department dated 8 November 2016 from Sajha Bank offering him employment as a Branch Manager, a position that was to commence “as soon as possible but not later than 30 February 2018”. The applicant stated in his written submission to the Department that the bank had offered to employ him after completing his proposed course, which at the time was a Diploma of Leadership and Management. The letter of offer does not refer to the applicant completing any further studies and it appears he could accept the offer at any time prior to 30 February this year. For these reasons, the Tribunal is not satisfied the applicant continued to study for genuine proposes and the Tribunal places weight on the applicant’s circumstances that indicate the student visa is intended primarily for maintaining residence in Australia.

19. 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).

20. 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.

21. 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

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

    Wendy Banfield
    Member