Khadka (Migration)

[2018] AATA 4564

Khadka (Migration) [2018] AATA 4564 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amit Khadka

CASE NUMBER:  1615864

DIBP REFERENCE(S):  BCC2016/1056994

MEMBER:Meredith Jackson

DATE:30 August 2018

PLACE OF DECISION:  Brisbane

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 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 30 August 2018 at 11:30am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – genuine temporary entrant criterion – applied for US permanent resident visa – genuine intention to complete studies– comply with visa conditions in the future – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65, 499
Migration Regulations 1994, Schedule 2, cls 573.111 573.223 Schedule 8, Visa condition 8202

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 12 September 2016 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 11 March 2016. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a Bachelor of Nursing Science. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations because they were not satisfied that the applicant was a genuine applicant for entry and stay as a student because they were not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to his circumstances and immigration history and other relevant matters.

4.    The applicant appeared before the Tribunal on 29 August 2018 to give evidence and present arguments.

5.    The applicant was represented in relation to the review by his registered migration agent.

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

Background

7.    The applicant is a national of Nepal and is 26 years old.

8.    The delegate’s decision record, a copy of which was provided with the review application, states:

i.The applicant was granted a Student TU573 visa offshore and came to Australia on 19 February 2013.

ii.The applicant was granted the visa to study a Diploma of Information Technology followed by a Bachelor of Information Technology.

iii.The applicant completed the Diploma of Information Technology but failed to enrol in his Bachelor course and it was cancelled in April 2014.

iv.The applicant then enrolled in a Certificate IV in Commercial Cookery, a course which did not commence until August 2014. The delegate found that  the applicant was in Australia without being enrolled in a specified course for a period of two months during which time he was in breach of visa condition 8202.

9.    The applicant’s record in the Provider Registration and Information Management System (PRISMS) indicates that he completed the Certificate IV cookery course in December 2015 and enrolled in a Bachelor of Business and a Bachelor of Nursing Science in 2016. His Bachelor of Business was cancelled in December 2017 and he is now studying in the third year of a Bachelor of Nursing Science.

1. In the present case, as the applicant currently is enrolled in the Bachelor of Nursing as his principal course, the subclass that may be granted is Subclass 573. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.

2. The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a Bachelor degree or Master degree by coursework or for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

3. On the evidence before the Tribunal, the applicant in this case is at the time of this decision, and was at the time of application, an eligible higher degree student who has a COE for an eligible course of study.  At the time of application, the applicant was enrolled in a Diploma of Information Technology at Queensland Institute of Business and Technology and a Bachelor of Information Technology, which is an eligible course at Griffith University, an eligible provider specified in an instrument: IMMI 16/003. The applicant is currently enrolled in an eligible degree at The University of the Sunshine Coast, an eligible education provider.

4. On 18 July 2018 the Tribunal wrote to the applicant inviting him to attend a hearing on 29 August 2018. That invitation requested the applicant provide all documents on which he intended to rely to establish that he meets the criteria for the visa, having regard to the reasons why he did not meet the criteria and any changes in his circumstances. The Tribunal also asked him to provide evidence of his enrolment status and an explanation of any gaps in his enrolments and other relevant documentary evidence.

5. In response the applicant provided to the Tribunal:

   i.A personal statement regarding the Genuine Temporary Entrant criteria;

   ii.Documents related to his application for an immigrant visa for the United States of America;

   iii.An unofficial academic record of his progress in his nursing degree.

6. In the personal statement, the applicant outlined the circumstances that led him to discontinue his studies in 2016 and breach his visa conditions. He claimed to have a sense of regret about the breach found to have arisen, and said his family circumstances including the illness of his grandmother affected his studies. He outlined his reasons for then attempting commercial cookery as an alternative career preparation pathway and also provided an explanation as to his reasons for subsequently enrolling in a nursing degree. He stated that the value of an Australian nursing degree to his future was immense and that his parents had wisely invested in his future, and while it was an expensive commitment the rewards would be recouped in the long run. He submitted he would seek no further extension of his student visa to complete his degree. As proof of his intention of not using the student visa as a “backdoor” to Australia, he provided documentation regarding his application for residency in the United States of America, where his family now have permanent residence. He claimed he would leave Australia before the expiry of a graduate visa, which, he was aware, he was eligible for on completion of his degree.

CONSIDERATIONS OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

   (1)      The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)the Minister is satisfied that 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)…

2. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

3. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. In making the decision the Tribunal has considered all the evidence before the Tribunal with regard to the applicant’s circumstances and immigration history, and all matters as outlined in Direction No. 53 and any other matters it considers relevant.

The hearing

1. The Tribunal explained to the applicant in the hearing the requirements he had to satisfy for the grant of the visa, and said it would put to him some questions in relation to whether he was both a genuine student and a genuine temporary entrant. The Tribunal stated that he had been sent information about those requirements and asked to provide information prior to the hearing.

2. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about him held in the PRISMS database, and explained its relevance in that the information in the database might be the reason, or part of the reason, to affirm the delegate’s decision.

3. The Tribunal explained the information in the database, which captures a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if he wished to seek further time to consider it. The applicant said he was prepared to comment on the information immediately after it was read to him and after having done so, confirmed that he understood it and why it was relevant to his case.

4. The student confirmed the information in the database was correct, and that he continues to study in a Bachelor of Nursing Science course.

5. In relation to the breach found by the delegate of a visa condition, the applicant said at the time he was worried about his grandmother who had injured her leg and was badly affected by it. His claimed his family was typical of those in Nepal where every family member has a special place and his grandmother’s incapacity had caused him great distress at the time. However he said he had become a good student after the delegate found he had breached his visa conditions, and was now due to finish his nursing degree at the end of 2019, with just three more subjects to do. The Tribunal asked why the PRISMS record showed he was due to finish in 2018, a year earlier, and he said he had failed his practicum, and would take another year to catch up, and this would extend his time in the course until the end of 2019. He had talked to his University about this and they had indicated to him that they would consider an extension at the completion of his current practicum.

6. The Tribunal asked why he had gone from an information technology pathway to cooking and now to nursing. The applicant said after he realised he was not suited to information technology, he had been interested in hospitality but after studying found it was also not for him, and further, he preferred not to study business as an alternative because he was not a corporate type. His parents had questioned the changes in direction when he told them he wanted to study nursing, but they were now supporting him fully and continued to enable him financially without any issue.

7. In relation to his application for a United States visa, he told the Tribunal he had applied for entry as a permanent resident and was awaiting the final step in the process, which was an interview. He planned to join his parents who live in California. He would also see his grandmother there as she was spending six months a year in Nepal and six months in the US. He would first want to complete his nursing degree in Australia. The Tribunal asked what he would do if he were not granted a US visa, and he said if that happened, he would go back to Nepal and be a nurse, where nursing was a respected occupation.

8. The Tribunal raised with the applicant that he had indicated he was on a pathway to a graduate visa in Australia and this might cause the Tribunal a concern, as it might indicate he wanted to extend his stay in Australia. The applicant responded that he had no family in Australia and wanted to join his family in the US.

9. In relation to his visa breach, the applicant said he had no intention of making a similar mistake. He had been naïve and at the time was unaware that he might be in breach of a condition of his visa. The Tribunal said that it noted he had slowed down his study path once again, to 2019, and said it might have a concern that he was using the opportunity to extend his stay. He said he had been unaware of the implications of his academic failings but was now determined to graduate and gain experience.

Conclusions and findings

1. Having regard to the relevant considerations in Ministerial Direction 53 and having regard to the evidence provided by the applicant during the hearing, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily as a student.

2. The Tribunal finds:

   i.The applicant intends to complete his nursing degree next year and has made reasonable study progress since commencing the course in 2016. Despite having changed his study pathway significantly twice before, the Tribunal accepts that at 26 years of age he is now determined to qualify in a profession to which he considers himself suited, and has improved his study record since his visa was refused. The Tribunal is also mindful that he has now demonstrated progression at the level for which his initial visa was granted.

   ii.The applicant has a significant incentive to leave Australia after his studies are completed, given that his family, on his evidence, now reside in California. He provided documentary evidence that he has taken significant action towards gaining residency in the United States and the Tribunal accepts that this application is one step from being finalised.

   iii.The applicant’s desire to seek a graduate visa at the end of his studies aligns with his plan to become a nurse and live in the United States with his family. He considers Australian nursing qualifications and subsequent experience as a graduate are capable of supporting a secure future, whether he is in the US or Nepal.

   iv.Returning to Nepal is a viable alternative option for him should his bid to live with his family in the United States fail. He submits that the nursing profession is well respected in his home country and his grandmother is there for half the year.

   v.The applicant is likely to comply with visa conditions in the future. He now sees the breach found by the delegate as a significant life error and among his concerns is that another breach would disappoint his parents.

3. On the basis of the above, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.573.223(1A)(b).

4. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. 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 573 Higher Education Sector visa:

   ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Meredith Jackson

Member

ATTACHMENT – Extracts from the Migration Regulations 1994

573.223(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

(a)the Minister is satisfied that 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 meets the requirements of subclause (1A) or (2).

(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

(a)the applicant gives the Minister evidence that the applicant has:

(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

(ii)educational qualifications required by the eligible education provider; and

(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)any other relevant matter; and

(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

(2)If subclause 573.223(1A) does not apply:

(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)any other relevant matter; and

(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.