GURUNG (Migration)

[2018] AATA 4781

GURUNG (Migration) [2018] AATA 4781 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr KHEM RAJ GURUNG
Ms SAMITA GURUNG

CASE NUMBER:  1712589

HOME AFFAIRS REFERENCE(S):           BCC2017/1451953

MEMBER:Gabrielle Cullen

DATE:18 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 18 October 2018 at 3:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant –course status –knowledge of course – good course progression – incentives to return – career plans in home country – Masters degree to enhance career prospects – elderly parents – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 6 June 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 April 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 applicant arrived in Australia on 26 January 2008 on a subclass 572 visa valid to 15 March 2010. He held student visas until 30 September 2017 and was then granted a subclass 485 visa to 23 April 2017. Since his arrival he has departed Australia on one occasion from 29 September 2010 to 14 February 2011.

4. Certificate of Enrolments attached to the applicant’s current application refer to the applicant studying a Master of Professional Accounting from 1 July 2017 to 31 December 2018. The applicant stated and provided evidence by way of his academic record that he has completed 9/12 subjects towards the Master of Professional Accounting. He said he was enrolled in the final 3 units and will finish the course in December 2018. Subsequent to the hearing he provided a letter from his education provider dated 17 October 2017 indicating that he began the course on 10 July 2017 and is expected to finish on 31 December 2018. He also provided evidence in the form of receipts from his education provider of having paid fees in the sum of $20,120 towards the course.

5. The evidence at the time of this decision, from the applicant, including course completion certificates, is that since his arrival in Australia he has successfully completed the following courses.

   ·Bachelor of Professional Accounting from July 2012 to February 2015

   ·Certificate II and III in Business from February 2010 to September 2010

   ·Advanced Diploma , Diploma of Accounting and Certificate III in Accounting  from January 2008 to December 2009

6. The applicant provided a statement to the Department advising he tried to look for accounting jobs in Australia while the holder of the subclass 485 visa so he could take the experience home but was unsuccessful. He submits that there is a big demand in Nepal for qualified and experienced applicants in the job market. He notes that his parents are getting older each day and he wishes to return to take care of them. He notes his parents have offered both he and his wife their property so they have space to live. He notes in his application that he will seek accounting and management courses in leading corporates in Nepal on completion of the degree. The second named applicant, the applicant’s wife also gave evidence supporting the applicant’s claims.

7. The delegate decided to refuse to grant the visa on 6 June 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned at the length of time he had spent in Australia and that despite holding a subclass 485 visa for two years he has not been employed in the accounting field rather continued to be employed as a supervisor at Mi Piace Pizza and bar as he had been since 2012.

8. On 14 June 2017 the applicants lodged an appeal to the Tribunal and attached the decision of the Department.

9. On 6 July 2018 the Tribunal wrote to the applicants and invited them to attend a hearing on 17 October 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

10. The applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The applicant’s representative attended the hearing. The applicant’s sister also attended the hearing but the second named applicant did not.

11. The Tribunal raised with the first named applicant (the applicant) that the matter before it is whether he meets the requirements of cl.500.212(a). 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 student.

12. He provided evidence of having completed 75% of his Master course. He indicated that he was currently enrolled in the remaining 3 subjects and will complete the course in December 2018. He named the remaining subjects to be completed consistent with information from the course provider.[1] He said he had paid all the fees towards the course.

    [1] >

    The Tribunal discussed with him why he had not been employed in accounting jobs while holding a subclass 485 visa. He said he had looked for and applied but had found it difficult to obtain employment in this area in Australia. He said he then realized after talking to people in Nepal that he needed a higher degree than a Bachelor’s degree when he returned to Nepal as the employment market is competitive.

13. He said he is currently working in a restaurant as a food and beverage manager. He said he will return on completion of the degree and aim to begin a job in accountancy and then may work in the family business.

14. He said he has two sisters, one who is in Australia on a permanent visa and the other who is in Nepal. He said his parents are in Nepal and elderly and as the son he needs to return to look after them.

15. He undertook to return to Nepal after completion of his current course in December 2018.

16. He said he has no military commitments in Nepal or civil or political issues that would act as a disincentive to return.

17. The Tribunal raised concerns as to his length of time in Australia and long time studying in Australia.

18. He also provided a statement following the hearing further detailing his future career aim and value of the course to his future.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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 meets cl.500.212(a).

20. Clause 500.212(a) 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

21. 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.

22. 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.

23. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

24. While the applicant’s slow rate of course progress is of concern, having arrived in Australia in 2008, the Tribunal views his positive study record as persuasive that he is a genuine student. The Tribunal views as indicative of a genuine student that he has completed a Bachelor of Professional Accounting and 75% (9/12 units) of the Master of Professional Accounting. It accepts he is currently enrolled in the remaining 3 subjects and expects to complete the Master course in late December 2018.

25. In total he has paid over $20,000 to achieve the Master of Processional Accounting so far. It notes he was able to provide detailed knowledge consistent with independent information as to the current course. 

26. The Tribunal accepts he is currently studying, attending the course and achieving course progression. It accepts he his genuine in his evidence that he wishes to achieve the Master of Professional Accounting. On the totality of the evidence, the Tribunal is satisfied that the applicant is committed to study in Australia so he can improve his employment and career opportunities when he returns to Nepal.

27. The Tribunal finds the reasons as to why he wishes to continue to study the course he is enrolled in as credible. It accepts his evidence as credible as to why he returned to study a Master of Professional Accounting after holding a subclass 485 visa. The Tribunal finds the applicant’s current enrolment and future plans supportive of his claim that he sees Australia as a temporary location in which to study. He gave evidence that he will depart Australia on completion of his degree in December 2018.

28. The Tribunal accepts that the balance of his family resides in Nepal. While his wife is with him in Australia she is also on a temporary visa. Further while his sister is a permanent resident in Australia he has repeatedly given evidence that he needs to return to look after his elderly parents. There is no adverse immigration record. There is no evidence of military service commitments or political and civil unrest In Nepal which would present as a significant incentive for the applicant not to return to his home country.

29. 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).

30. 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

31. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    Gabrielle Cullen
    Member