Gurung (Migration)

[2018] AATA 5144

Gurung (Migration) [2018] AATA 5144 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mukty Bahadur Gurung

CASE NUMBER:  1703638

HOME AFFAIRS REFERENCE(S):           BCC2016/2991292

MEMBER:Wendy Banfield

DATE:12 November 2018

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 12 November 2018 at 10:17pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applicant dependent on his wife’s student visa – relationship ceased – enrolment in and completion of vocational courses – employment prospects and family ties in Nepal – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, 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 16 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 8 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 aged 35. He was previously married and had arrived in Australia on 12 March 2014 as a dependent on his wife’s Student Visa. The applicant and his wife ceased living together in March 2015 although the applicant’s account is that they continued to have an irregular relationship that he had hoped would continue. The applicant’s wife lodged an independent visa which the applicant claimed he did not become aware of until August 2016. He had not taken any steps to inform the Department of his circumstances or regularise his visa status.

5. At the time of application the applicant was enrolled to study a General English course. He has since completed a Certificate III in Hospitality and is studying a Certificate IV in Commercial Cookery. The applicant also has approval to take a Diploma of Hospitality Management.

6. The applicant appeared before the Tribunal on 6 April 2018 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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..

10. 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?

11. 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.

12. 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.

13. The Tribunal has considered the applicant’s circumstances in his home country. He declared he has parents and a brother in Nepal who are supporting his studies financially. The applicant state he intends to return to his home country and work in the hospitality industry in future. The applicant claimed he had not returned to Nepal since arriving in Australia as he was hoping to save his relationship with his wife. The Tribunal has some concerns about the applicant’s ongoing ties to his home country but is prepared to accept he has demonstrated some incentive to return after studying.

14. In Australia the applicant is studying Commercial Cookery and is employed as a cook. He plans to also study a Diploma of Hospitality which the Tribunal accepts is relevant to his work experience and a logical progression.

15. The Tribunal has considered the value of the course to the applicant’s future. As the applicant did not complete his education beyond secondary school in Nepal, the qualifications he had obtained in Australia will no doubt be of benefit to his future career.

16. The applicant’s immigration history is that he came to Australia originally as a dependent on his wife’s visa. He later decided to study independently and continued to do so after his visa was refused. The Tribunal is satisfied that despite the applicant’s failure to comply with a condition of his previous visa, he is a genuine student who intends to study and improve his future prospects.

17. 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?

18. 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.

19. 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

20. The applicant has previously been in breach of visa condition 8516 (continue to satisfy criteria). The applicant had ceased to be a member of the family unit of a person who satisfied the primary criteria for the grant of a Student Visa. The applicant provided an explanation concerning the breakdown of his relationship with his former wife, which he claimed had continued on an intermittent basis. The applicant stated he had not been aware of her own visa arrangements for a significant period of time, and then decided to apply for a Student Visa on his own.

21. The Tribunal has concerns about the applicant’s circumstances at the relevant time but on balance, is prepared to accept he intends to comply with visa conditions in future.

22. 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?

23. 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)).

24. The Tribunal has taken into account the applicant is enrolled and pursuing a logical study path that is in line with his work experience to date. The Tribunal considers the applicant should be given the opportunity the complete the courses he is currently enrolled in.

25. 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.

26. 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

27. 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.

    Wendy Banfield
    Member