GURUNG (Migration)

GURUNG (Migration) [2018] AATA 5898 (5 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr DHAN BAHADUR GURUNG
CASE NUMBER:  1708103
HOME AFFAIRS REFERENCE(S):           BCC2016/2707916
MEMBER:David Barker
DATE:5 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 05 November 2018 at 10:15am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine temporary entrant – previously held subclass 573 higher education student visa – failed to maintain study at higher education level – multiple vocational education courses completed – multiple courses cancelled – visas sought as pathway to permanent residency – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cls 500.212, 500.311, 500.312

CASES
SZVIP [2018] FCCA 1393
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 March 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subsequent Entrant) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 August 2016 as a secondary applicant, with his wife being the primary visa applicant for the Student visa. 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.
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 they were not satisfied the available evidence demonstrated that the applicant met the required genuine temporary entrant criterion.
The applicant appeared before the Tribunal on 26 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, Ms Tilottama Pun Magar.
The applicant was assisted in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a national of Nepal and is 33 years old.
The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant first arrived in Australia in November 2007 on a Subclass 572 Student visa. The delegate had regard to the Provider Registration and International Student Management System (PRISMS) which documented the applicant’s study history in Australia.
The PRISMS record indicated the applicant has been enrolled in and completed the following courses since his arrival in Australia:
·Advanced Diploma of Business Management
·General English – Beginner to Advanced
·Diploma of Accounting
·General English – Beginner to Advanced
·Certificate IV in Hospitality (Commercial Cookery)
·Diploma of Hospitality
·General English – Beginner to Advanced
The PRISMS record indicated the applicant enrolled in the following courses since his arrival in Australia but the enrolment was subsequently cancelled:
·Certificate IV in Tourism
·Bachelor of Professional Accounting
·Diploma of Accounting
- Bachelor of Professional Accounting
·Master of Business Administration
- Bachelor of Professional Accounting
·Certificate IV in Hospitality (Commercial Cookery)
·Diploma of Hospitality
·Bachelor of Business
·Advanced Diploma of Hospitality
·Bachelor of Business
The delegate noted the applicant’s study history displayed an overall lack of academic progression beyond vocational education sector level courses, despite the previous grant of Subclass 573 higher education sector level student visas. The delegate noted some of the applicant’s courses were cancelled due to unsatisfactory course progress and expressed concern that the applicant had disengaged from a further Bachelor of Business course and applied for a Student Subsequent Entrant visa. The delegate found the applicant took these actions with the goal of maintaining his residence in Australia and thereby circumventing the intention of the migration program.
On 29 June 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 26 July 2018. That invitation among other matters put the applicant on notice that the Tribunal would assess whether he is a genuine temporary entrant and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.
On 23 July 2018, the Tribunal received documents from the applicant including:
·     Statutory declaration from the applicant, dated 23 July 2018
·     Statutory declaration from Ms Magar, dated 23 July 2018
·     NSW Births, Deaths and Marriages marriage certificate regarding the marriage of the applicant and Ms Magar, dated 21 July 2016;
·     Correspondence sent to the applicant and Ms Magar at a residential address in Auburn, NSW;
·     Bank records;
·     Residential tenancy agreement and evidence of rental bond payment;
·     Photographs.
The statutory declaration from the applicant stated:
I am a Nepalese national born on 3 January 1985 currently aged 33 and residing together with my wife, Tilottama Pun Magar (Ms Magar) at [Auburn address provided], having moved to this address from [Homebush address provided] on 21 May 2018.
I am currently on a Bridging Visa A whilst awaiting a hearing date of my AAT
Application lodged on 13 April 2017 in relation to my Student Visa Subclass 500 being, refused on 30 March 2017. I had instructed my then migration agent, Moni Limbu, of Galaxy Migration, to apply for a Student Visa on my behalf as a dependant on my wife's then Subclass 573 Visa.
I married Ms Magar in Sydney on 21 July 2016 at the Civil Registry in Chippendale (see attached copy of our Marriage Certificate Registration 636788/2016). I first met Ms Magar around 3 years ago in the middle of 2015 on Facebook, having been introduced by our mutual friend by the name of Anil Shiwakoti. I was in Sydney at the time and Ms Magar was living in Nepal. We remained friends on Facebook, messaging each other regularly. We exchanged phone numbers and continued to communicate with one another. We developed a strong bond of friendship and trust and became very close friends over the net. I would also speak to Ms Magar regularly over the phone. I encouraged Ms Magar to come to Australia to study. Fortunately, Ms Magar was looking to further her academic studies. She obtained a Student Visa in 2016 to study for her Master's of Nursing. She already had an undergraduate degree in Nursing from Nepal.
I went to Nepal in April 2015 to meet Ms Mager and to visit my family and friends which was the first time I physically met Ms Magar (see attached photos from this trip). Our meeting went very well. We were both very happy to meet each other face to face. Our relationship deepened and strengthened.
As Magar's Student Visa was granted on 2 February 2016. We were both very excited that Ms Magar was coming to study in Australia. She knew that she had a very close friend in me who she could trust. I offered her to stay with me. She gladly accepted. Our relationship in Australia blossomed into attraction and love for one another. At that time, I was then 31 and Ms Magar was 25 years of age. We were both mature and knew what we wanted. We wanted each other for the rest of our lives. We became inseparable.
Once Ms Magar and I had both fallen in love and committed our lives to one another, to the exclusion of all others, I decided to propose marriage to her. It was on 18 March 2016 when we were celebrating a very close friend's birthday and we were all very excited. Whilst we were enjoying the fresh air on the balcony, I proposed to Ms Magar as that seemed to be the most natural time and place and thing to do as I was completely in love with her, as she was with me. Ms Magar was delighted at the proposal and readily accepted my proposal to marry her. From that day onwards, we formally committed to each other a shared life of togetherness to the exclusion of all others. We were both overjoyed with our decision.
Ms Magar and I were married on 21 July 2016 in Sydney, Australia, in the presence of our close friends. Our family members could not join us from Nepal at the wedding due to financial constraints. However, we have spoken to our respective parents many times over the phone. Both sets of parents were fully supportive of our relationship and our marriage to one another. We had to be satisfied with a small wedding in the presence of our friends and the marriage celebrant.
Ms Magar started living with me after she came from Nepal to Sydney on or around 16 February 2016 at my Homebush address. We remained there until we recently moved on 21 May 2018 to our current address, namely, [Auburn address provided]. Ms Magar and I are totally dependent on one another emotionally, physically and financially. We opened our joint bank account last year at NAB (see attached copies of our joint bank account since we opened to present date). We also have and have held independent bank accounts. I have an independent bank account with CBA (see attached copies of our individual bank accounts as well as our common bank account which evidences our common address since we got married in July 2016). We share in all our household expenses including groceries, utility bills, rent as well as other expenses proportionate to our financial capacities. I work casual at the Bankstown Hotel. My earnings are received into my CBA account. I use my CBA account towards our common living expenses. Whatever we have in our personal accounts we also put into our joint account with the NAB. We use the NAB also for common expenses including legal fees and any other household expenses not paid for from our individual accounts (see attached copies of our various bank account statements evidencing the expenses used for joint household living expenses).
Please see attached copies of various documents which demonstrate that Ms Magar and I have been living at the same address since we were married on 21 July 2016.
Ms Magar and I share in many common interests. We both come from the same ethnic cultural background (Nepal). We are fully aware of our culture norms and values and hence we could adapt to each other without any difficulty. We both enjoy watching movies, eating out, cooking, socialising with our common friends and most of all, being with each other.
We share in our household duties and responsibilities as any other couple would. We share completely in all our household duties including cleaning, ironing, washing dishes and clothes, maintaining the unit, taking out the garbage and shopping. I am fully supportive of Ms Magar's studies and very much want her to succeed in obtaining her Master's Degree in Nursing at the University of Wollongong.
Due to financial constraints, we have not been able to travel. As we do not have a car, we have found it also very difficult to go touring around Sydney or beyond. We very much stay at home and go walking around the surrounding areas when we are both not working.
I attach hereto photographs of the two of us taken at different places over the last number of years. Our plans are to have children once we are ready and can afford to raise a family. However, it is certainly both of our intention to have children and raise a family of our own.
The statutory declaration from Ms Magar stated:
I am a Nepalese national, born on 7 January 1991 and am currently aged 27 years old. I currently live at [Auburn address provided], having moved to this address from [Homebush address provided] on 21 May 2018.
I am married to Mr Dhan Bahadur Gurung (the applicant), who is also from Nepal and is currently aged 33 years old. We both reside together at the Auburn premises.
I am currently on a Student (Temporary) (class ^-EU) Student (subclass 500) visa which was granted on 30 August 2017, valid until 30 September 2018. My husband, the applicant, applied for a Subclass 500 Student Visa on 16 August 2016, which was then refused on 30 March 2017. He is currently on a Bridging Visa A as he awaits a hearing date from the AAT, having lodged his review application with the AAT on 13 April 2017.
The applicant and I continue to remain in a loving and genuine relationship. We got married on 21 July 2016 (see attached copy of our Marriage Certificate Registration 636788/2016).
I first met the applicant online via Facebook around the middle of 2015. I was still living in Nepal at the time while the applicant was in Sydney. A mutual friend, Anil Shiwakoti, introduced us and we became good friends immediately as we began communicating over the internet and the telephone on a regular basis.
We physically met in April 2015 in Nepal when the applicant came to visit family and friends. I was very happy and excited to finally meet the applicant in person and our relationship became even stronger from that moment onwards.
I started nursing in India and finished a Bachelor Degree, thereafter working in Nepal for 2 years but decided that I would like to further my studies. I applied for a Student Visa as I wished to study a Master's of Nursing in Sydney, Australia, which was granted on 2 February 2016.
The applicant asked me if I wanted to live with him in Sydney and I agreed in Nepal. We were both excited that we could physically spend a lot more time together now that I was coming to live in Australia.
Our relationship moved quite quickly from then onwards as we shared, and continue to share, various common interests, such as cooking, eating out and watching movies. We bonded over our common culture and religion. Not long after I arrived in Australia, the applicant proposed marriage to me on 18 March 2016 at a close friend's birthday celebration and I gladly accepted. We were both incredibly excited to start a life together and to formally commit ourselves to one another, to the exclusion of all others.
A few months later, on 21 July 2016, we were married in Sydney NSW Registry of Birth, Deaths and Marriages at Chippendale. Unfortunately, due to financial constraints, our family could not join us on this special occasion, but it was still a very special day that we shared with our closest friends. Our families fully supported our marriage and continue to support our relationship. We do wish to eventually have children together once we are in a more stable financial situation.
I have resided at the applicant's rental property in Homebush since I arrived in Sydney from Nepal, although we moved to our Auburn address recently. We have always divided the household duties and chores equally.
We share the household expenses including groceries, utility bills and rent. We opened a joint bank account in 2017 with NAB (see attached copies of our bank statements for this joint account). We also have individual bank accounts and spend money from these accounts on joint expenses. I have an individual bank account with NAB (see attached copies of bank statements for our individual accounts which evidences our common address since 21 July 2016 and attached utility bills, also evidencing our common address since such date).
We would love to travel in the future but at this stage, we have not been able to do so due to financial constraints. Instead, we enjoy exploring Sydney and often walk around our surrounding area (as we do not own a car).
I attach hereto a number of photographs evidencing our ongoing relationship over the past few years.
The Hearing
The Tribunal raised with the applicant that an issue for consideration in the matter before it is whether he meets the requirements of cl.500.312. It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa. The Tribunal also, at the commencement of the hearing, provided the applicant with a copy of the PRISMS record of his study history in Australia, noting that this record was discussed in the delegate’s decision record and that as the Tribunal has access to the record it was providing him with a copy out of the interests of procedural fairness.
In response to the Tribunal summarising issues raised in the delegate’s decision, including that since the applicant arrived in Australia in November 2007 his study history did not show significant academic progression and that he had failed to maintain study at a higher education sector level and that a number of courses he had enrolled in were cancelled, the applicant made the following comments:
·When he applied in Nepal for a student visa to come to Australia he was told a tourism course would be a good course to apply for and that once he was here he could then change to a different course. He withdrew from the tourism course after around nine months of study, as he was not that interested in the tourism course;
·His background in Nepal was in business management. However, he found the Bachelor of Business (Accounting) degree he enrolled in a bit hard, as his background was not in accounts, his background was in business;
·He withdrew from the Bachelor of Business and then did a Diploma of Accounting course. He then enrolled in a Master of Business Administration, as he had studied a Bachelor of Business Administration in Nepal, prior to coming to Australia. However, he found the Master of Business Administration course in Australia a bit hard, as he had to work and also go to college and found it hard to effectively manage his time;
· For this reason, he withdrew from the Master of Business Administration program and considered returning to a bachelor degree. He then commenced a Certificate IV in Hospitality. Following this he had the opportunity to return to study a bachelor degree. He said he did study consistently in the hospitality certificate and a hospitality diploma course, which is not reflected in the PRISMS records;
· He commenced an Advanced Diploma of Hospitality, but he met his wife and they kept in contact with each other and then got married. He withdrew from the Advanced Diploma of Hospitality after he was married because, as a dependent on his wife’s visa, there was a restriction on his capacity to study for more than three months. He thought he was wasting his money studying full-time and instead should be supporting his wife emotionally and in other ways. He said he had to support his wife and if he had studied it would have distracted him from helping his wife.
The Tribunal noted that the applicant’s PRISMS records indicate that he had enrolled in a number of bachelor degree courses which he had not subsequently completed. In response to this comment the applicant said he enrolled in and paid for the Confirmation of Enrolment so he could maintain the Subclass 573 higher education sector level enrolment requirements.
In relation to the concern raised by the delegate that the applicant had failed to maintain study at a higher education sector level, which the Tribunal noted was a condition attached to Subclass 573 Student visas, the applicant said at a certain point he found out it would be difficult to apply for permanent residency if he completed the Master of Business Administration. He explained this is why he changed his vocational pathway to study commercial cookery and hospitality courses, as at that time hospitality qualifications were the sort of qualifications on the list of qualifications that would have provided a pathway to apply for a regional skilled working visa and that that sort of visa would in turn have provided an easier pathway to apply for permanent residency. He said that as it turned out, he was unfortunately not selected for a regional skilled work visa two or three years ago, after he had finished the Diploma of Hospitality.

The Tribunal noted that the applicant had provided evidence with his review application regarding his relationship with his wife and invited him to comment on this evidence and about the nature of his relationship with Ms Magar. In response to this invitation the applicant made the following comments:
·He and Ms Magar commenced a relationship with each other in the middle of 2015 and then were married in July 2016. Their relationship is going well and they are happy and they are planning to have a baby and then start a happy family.
·Neither he nor Ms Magar have other relatives in Australia.
·He and Ms Magar come from different castes and that is why they married in Australia and why they plan to settle here and have a baby before they return to Nepal. Their hope is their families will then be more accepting of the relationship. Back in Nepal people are narrow minded and are not accepting of cross-caste marriages.
·If they return to Nepal, he does not know what will be going on in people’s minds and he is worried that people, including their families may try to separate he and his wife and make them marry other people from their own respective castes. He is worried that if they go back to Nepal their family or relatives will say they are still children, as they do not have proper jobs and are not in a position to decide for themselves who their partner should be.
·If they have a period of time here in Australia it will then be easier for their families to accept their relationship.
The Tribunal put to the applicant that his oral evidence, as to his concern that his marital relationship with Ms Magar would not be accepted by their respective families or the general community in Nepal and his further evidence that they intend to manage this by settling and commencing a family of their own in Australia, gives rise to a concern this provides him with an incentive to maintain his residency in Australia. In response to this concern the applicant made the following comments:
·Once they have nicely settled down in Australia and he has a good job it will be easy to convince his and Ms Magar’s parents that they will be in position to take care of each other;
·Ms Magar is studying a Master’s in nursing. He is working as a kitchen hand, earning between $300 and $400 per week;
·The market and economy in Nepal is slowly improving and once he gets more experience working in a kitchen he and his wife will be able to return to Nepal and seek work in their respective vocational sectors. Ms Magar will seek nursing work and he will seek work in a kitchen or a café.
As to his ties to Nepal, the applicant said he has his mother and an elder sister in Nepal and he has another elder sister who lives in the United States and an elder brother who lives in Denmark. He said his family owns a house in Nepal that he has a right to live in.
The applicant gave evidence that he has no military service commitments in Nepal and that he has no concerns with regard to the political situation or civil unrest there that would provide him with an incentive to not wish to return there.
Evidence of Ms Magar
Ms Magar gave evidence that the applicant is her only relative in Australia and that if he could not get a visa allowing him to remain in Australia it would be very difficult for them both. She said that she would like to request that she and the applicant be allowed to live together in Australia.
In response to a question from the Tribunal as to her plans in relation to when she has completed her academic study, Ms Magar gave evidence she has recently finished a Master of Nursing and that once the results are available she intends to apply for a Subclass 485 Temporary Skilled Graduate Work visa. She said that she is uncertain how long she will be able to remain in Australia and if possible she would like to have permanent residency in Australia and if this was not possible she would return to Nepal.
Response of the applicant to evidence provided by Ms Magar
The applicant told the Tribunal that his wife gave truthful evidence and that if he had to go back to Nepal there would be no one in Australia to support her financially, emotionally or on a practical level.
Oral submissions from the representative
The applicant’s representative asked the Tribunal to clarify with the applicant if he or Ms Magar were members of the Darlit caste in Nepal. The Tribunal saw no difficulty in putting this question to the applicant and proceeded to do so.
Response of the applicant
The applicant said neither he nor his wife were members of the Darlit caste.
Further oral submissions from the representative
The representative submitted that in this matter the delegate erroneously went into the applicant’s own study history and whether he met genuine temporary entrant requirements. The representative referred the Tribunal to the Department’s policy guidance in relation to this issue, which while stating that when determining an application for a Subsequent Entry visa, consideration should be given to whether the applicant is a genuine applicant for entry and stay in accordance with Direction 69, consideration of the applicant’s own study history may be required, the value of courses undertaken by an applicant should be accorded less weight than the issue of whether the applicant is in a relationship with a person who is the primary applicant for the student visa.
The representative submitted that consideration of the applicant’s education history only goes to the issue as to whether the applicant would complete future courses of study, which is not relevant to the assessment of the nature of the parties’ relationship. The representative further contended in relation to the applicant’s likely compliance with conditions that may be attached to the visa, there is no grounds to consider he would not comply with conditions that would most likely be applied such as 8104, 8501, 8506 and 8201.
The representative submitted that in relation to the Tribunal finding that the applicant and Ms Magar have different caste backgrounds providing them an incentive to remain in Australia, the evidence of the applicant is that he has good strong family and economic roots in Nepal. The representative submitted that any concern the applicant has about he and his wife’s different caste backgrounds is subsumed by Ms Magar’s evidence that she intends to apply within six months for a Subclass 485 work visa, which is a visa of two years duration and that following this she would apply for a visa allowing her permanent residency in Australia and then if this was not successful she would return to Nepal.
As to the applicant’s evidence that neither he nor Ms Magar are members or the Darlit caste, the representative brought to the attention of the Tribunal a decision of the Federal Circuit Court of Australia SZVIP [2018] FCCA 1393, where the court at paragraph 36 referred to country information indicating that violence or social ostracism applies almost exclusively to intercaste marriage involving either a Darlit bride or groom. The representative submitted that if the applicant has a fear about how he would be treated in Nepal because of his marriage to Ms Magar, it is not a well-founded fear.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. The secondary criteria in cl.500.3 must be satisfied by applicants who are members of the family unit of a person who holds a student visa, having satisfied the primary criteria: cl.500.2. 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 (the “primary person”) who holds a student visa.
The Tribunal has had regard to all relevant facts and matters, including information on the Department and Tribunal files and oral evidence given at the hearing.
The Tribunal has considered the submissions from the applicant’s representative as to why the applicant’s own study history should be accorded less weight than evidence as to the nature of his relationship with Ms Magar, the primary person. The Tribunal has also reviewed the Department’s policies (PAM3) in relation to this issue. In the view of the Tribunal it is not a matter of elevating a particular criterion for the grant of the Subclass 500 Subsequent Entry Student visa over another criterion. Rather, for a successful application, it is a requirement that all of the relevant criteria be satisfied.
Is the applicant a member of the family unit of the primary person? (cl.500.311)
‘Member of a family unit’ is relevantly defined at r.1.12(1)(b) of the Regulations, which provides:
Reg 1.12    Member of the family unit
(1)   For the definition of member of the family unit in subsection 5(1) of the Act, and subject to
subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)a spouse or de facto partner of the family head; or
(b)a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i)      does not have a spouse or de facto partner; and
(ii)     is usually resident in the family head's household; and
(iii)      is dependent on the family head.
The Tribunal has reviewed a marriage certificate which was issued by NSW Births, Deaths and Marriages in July 2016 and accepts the applicant and Ms Magar are in a valid marriage and that she holds a Subclass 500 Student visa and is currently enrolled in a Master of Nursing course.
Accordingly, the applicant is a member of the family unit of the primary applicant and satisfies cl.500.311 of Schedule 2 to the Migration Regulations.
Is the applicant a genuine applicant for entry and stay? (cl.500.312)
As the applicant has applied for a visa as a member of the family unit of a person who holds a student visa and the visa has been refused because he did not meet cl. 500.312, he is not required to be enrolled in a course of study or to be a genuine applicant for entry and stay as a student but as a member of the family unit of a person who holds a student visa.
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.
In considering whether the applicant satisfies cl.500.312, the Tribunal must have regard to Direction 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; and
·the applicant’s immigration history; and
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·whether the applicant intends to comply with any conditions subject to which the visa is granted; and
·the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
·the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
·any other relevant matter; and
·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.
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.
The Tribunal has reviewed the available evidence and is satisfied it does not raise concern that the applicant is unlikely to comply with conditions that would most likely be applied to a Subclass 500 Subsequent Entrant Student visa, such as 8104, 8501, 8506 and 8201.
The Tribunal is satisfied the applicant’s past study choices were significantly influenced by his judgement as to whether they would provide him with a probable pathway to permanent residency in Australia. In forming this view the Tribunal was influenced by the applicant’s evidence as to why he ceased study in a Master of Business Administration and changed to hospitality courses because he thought this would increase his chance of successfully applying for a Temporary Regional Skilled Work visa and that this would in turn provide him with a more viable pathway to achieving permanent residency in Australia. The Tribunal has placed weight on this finding as an indicator the applicant does not genuinely intend to stay in Australia temporarily as a member of the family unit of a person who holds a student visa.
The Tribunal notes there are significant inconsistencies between oral evidence provided by the applicant during the hearing regarding his and Ms Magar’s families’ non-acceptance of their marital relationship and statements in statutory declarations provided by the applicant and Ms Magar with the review application which claim their respective families are supportive of their relationship. The Tribunal considers this to diminish the weight that can be accorded to the applicant’s claims somewhat. The Tribunal has decided to prefer the applicant’s oral evidence about this issue and the related concern he has about returning to Nepal because of the attitude of their families and the general community there for intercaste marriages. This is because the Tribunal gave the applicant the opportunity to comment on the Tribunal’s concern that his concern about how he and his wife would be treated if they return to Nepal gives him an incentive to maintain his residency in Australia. The Tribunal is satisfied that putting the applicant on notice of this concern gave him the opportunity to correct any misinterpretation the Tribunal may have made about his earlier oral evidence on this issue. In response to the concern put to the applicant about this aforementioned issue, he spoke to his wish to nicely settle down in Australia with his wife and for them both to get good jobs in Australia.
The Tribunal has noted the submission from the applicant’s representative that neither the applicant nor Ms Magar are members of the Darlit caste, which country information highlights are a group most at risk of discrimination or harm as a result of an intercaste marriage in Nepal. The Tribunal accepts the validity of the country information referred to by the representative and the Federal Circuit Court in SZVIP [2018] FCCA 1393. However, the Tribunal considers the applicant’s self-assessment of this issue and the extent to which his decisions and actions have been and are influenced by his concern about whether his marriage to Ms Magar will be accepted in his home country by their respective families and other people. The Tribunal finds the applicant’s expressed concerns in relation to this issue provide him with an incentive to maintain his residency in Australia and is a further indicator the applicant does not genuinely intend to stay in Australia temporarily as a member of the family unit of a person who holds a student visa.
The Tribunal is not persuaded by the representative’s submission that any concerns held by the applicant in relation to how he and his wife would be treated if they returned to Nepal would be subsumed by Ms Magar’s wish to apply for a temporary graduate work visa allowing her to remain in Australia for a further period of time and that she may subsequently seek permanent residency in Australia. The Tribunal accepts Ms Magar’s evidence in relation to this issue is consistent with that provided by the applicant that he wishes to settle in Australia and hopefully secure good jobs and have a child here, prior to visiting their families in Nepal. However, the Tribunal is not persuaded that this evidence supports a contention the applicant genuinely intends to stay in Australia temporarily, rather than seeking to maintain his residency in Australia indefinitely. For the reasons discussed in the preceding paragraph, the Tribunal is in any event satisfied that the applicant has a concern in relation to how intercaste marriages are treated in Nepal which provides him with an incentive to maintain his residency in Australia for the foreseeable future.
After considering this and all of the available evidence and the matters identified in Direction 69, the Tribunal is not satisfied, on balance, that the applicant intends genuinely to stay in Australia temporarily. Therefore, 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.
Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.312.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Barker
Member

[2018] AATA 5898

5 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

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