Karki (Migration)

[2019] AATA 402

Karki (Migration) [2019] AATA 402 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamal Karki

CASE NUMBER:  1726132

HOME AFFAIRS REFERENCE(S):           BCC2017/3332790

MEMBER:Linda Holub

DATE:30 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 30 January 2019 at 1:46pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at time of lodgement – factors beyond applicant’s control – unable to obtain necessary documents – floods in Nepal – compelling reasons – graduate ceremony – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3 Criterion 3004

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 on 10 October 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 12 September 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.223, which requires if the visa applicant was in Australia at the time of application and did not hold a substantive visa, the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223 because the applicant did not hold a substantive visa at the time of lodgement of the Visitor visa and the delegate was not satisfied there were factors beyond the applicant’s control, which prevented him from lodging the current application while holding a substantive visa or that there are compelling reasons for the grant of the visa.  The delegate therefore found the applicant did not satisfy Schedule 3 criterion 3004.

5. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

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

BACKGROUND

1. The visa applicant was granted a Student visa (TU-573) on 14 July 2015.  He arrived in Australia on 25 July 2015.  He undertook a Master’s Degree at the University of Technology (UTS) in Sydney. 

2. The Decision Record states that the applicant’s Student visa ceased on 30 August 2017 and that he lodged an application for a Visitor visa on 12 September 2017.  When asked by the Department to provide reasons he did not hold a substantive visa at the time of lodgement and to submit whether there were factors beyond his control, or  any compelling reasons for the grant of the visa, he responded by email on 4 October 2017.  In his response, the applicant stated that he was not able to apply for the Temporary Graduate visa before his Student visa expired because he needed additional time to obtain the necessary documents.  He stated that he applied for the Visitor visa so he had more time to arrange documents prior to applying for the Temporary Graduate visa. 

CONSIDERATION OF CLAIMS AND EVIDENCE

1. In light of the fact the applicant did not hold a substantive visa at the time of lodgement of the Visitor visa the issue in this case is whether there were factors beyond the applicant’s or whether there are compelling reasons for the grant of the visa

10) In the present case, the visa applicant seeks the visa for the purposes of remaining in Australia until his graduation ceremony is held.

11) The applicant submitted a number of documents to the Tribunal in support of his application including a written submission, email correspondence with the university about the release of his academic results, his academic transcript, information regarding floods in Nepal in 2017, a copy of travel itinerary showing he has booked a flight departing Australia on 2 June 2019, a copy of a statement showing his bank balance, receipts of fee payments to UTS and information about the graduation ceremony.  Further details about the graduation ceremony were provided at hearing.

12) At hearing the applicant confirmed the written evidence provided and stated that he was unable to pay the final amount of his university fees as a result of flooding in Nepal in 2017.  At hearing, he also referred to family circumstances that impacted on his ability to pay the fees in a timely manner.  The applicant stated that his father was in the Indian army and spent most of the time in India.  The applicant claimed that it is very difficult for the family to contact his father because he is in the army.  He claimed that often his father is away and does not have mobile signal.

13) The Tribunal put to the applicant that the information he provided regarding the impact of the floods did not specifically refer to Kathmandu as being affected. The applicant stated that his mother and sister live in Kathmandu and although the city was not directly affected by flooding, because its provides the infrastructure and support for the rest of the country, the situation in Kathmandu was very difficult at that time.  The applicant stated that his mother attempted to transfer funds to him but was impeded by the difficulties facing Nepal at the time.

14) The Tribunal put to the applicant that the requirement to have fully paid his fees prior to being able to access his academic transcript (which was required to lodge an application for the Temporary Graduate visa), would have been well known to him. The applicant acknowledged that it was.  He stated that he had discussed the predicament he was in with the relevant university staff but they were unable to accommodate his needs to obtain the documents.  He stated that he only had 20% of the fee to pay.

15) The Tribunal put to him that he was advised by the university on 22 August 2017 that he his debt was overdue and that it must be paid by 28 August 2017 to be able to register for the Spring 2017 graduation ceremony and that the evidence he submitted shows that the first payment he made was on 31 August 2018 (he later made a further payment on 6 September 2017).  The applicant stated that his payment was delayed because of the difficulty he had obtaining funds from his family. 

16) The Tribunal asked the applicant what compelling reasons he sought to have considered for the grant of the visa.  The applicant referred to his inability to attend the graduation ceremony.  The Tribunal put to the applicant that he would nevertheless be able to graduate and receive his Master’s degree.  He responded that he came to Australia to study and he very much wants to attend the ceremony.  He said that this was important to him. He stated that studying at UTS was very difficult and he wants to be part of the ceremony where all the professors and other students will be in attendance.  He also stated that having studied really hard, he believes he met the conditions and thinks he should be able to share the event with his parents who will be very proud.

17) The applicant’s migration agent made oral submissions that essentially repeated the claims of the applicant.  He explained that the applicant came to Australia in 2015 and has undertaken a Master’s degree, that he had always done the right thing but that he only had a week to finalise payment and submit the necessary documents for the Temporary Graduate visa.  He repeated that the circumstances were beyond the control of the applicant and were the result of the inability of the applicant’s parents to send him money at that particular time.  He stated that if the Tribunal is not satisfied that the circumstances were beyond the applicant’s control then they submitted that that there are compelling circumstances.  The applicant’s migration agent also referred to the investment made by the applicant and his parents in his studies and that no student should be denied a visa if it meant they could not attend their graduation ceremony.

Findings

18) The Tribunal accepts that the visa applicant wishes to attend his graduation ceremony and that he would very much like his parents to share in his achievement by being there.  The Tribunal is sympathetic to this.

19) The applicant gave evidence that it was well known to him that the university would not release certain documents to him until his fees were fully paid and while the Tribunal accepts that flooding occurred in Nepal in mid-2017, the evidence submitted did not satisfy the Tribunal that this impacted on the applicant’s ability to pay the final part of his university fees.  Although no evidence was provided to the Tribunal that the applicant’s father is in the Indian army and difficult to contact the Tribunal is prepared to accept this claim.  However, the Tribunal did not find the oral evidence convincing regarding the impact of this on the applicant’s inability to pay the final part of his fees.  Therefore, the Tribunal was not satisfied that the applicant was not the holder of a substantive visa because of factors beyond his control.

20) The Tribunal did not find the applicant’s argument that he wanted to attend his graduation ceremony as a compelling reason for the grant of the visa.  The Tribunal took account of the fact that he can be awarded his degree without attending the ceremony so there is no actual disadvantage to him in terms of benefiting from the family’s investment in his studies nor in the satisfaction and pride that he and his family can experience in his achievements.

21) For the above reasons the Tribunal is not satisfied Schedule 3 criterion 3004 was met by the applicant and consequently, the applicant does not meet the requirements of cl.600.223.

DECISION

22) The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Linda Holub
Member