Koirala (Migration)

[2018] AATA 5916

Koirala (Migration) [2018] AATA 5916 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saiujjwal Koirala

CASE NUMBER:  1620005

HOME AFFAIRS REFERENCE(S):           BCC2016/2920842

MEMBER:Wendy Banfield

DATE:17 July 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 17 July 2018 at 1:37pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – minor applicant – intention of parents – immigration history – first arrived on visitor visas for stated purpose of holiday – enrolled in a school 17 days after arrival – strong incentive to remain in Australia – incorrect information in previous visa application – declared no relatives in Australia – niece in Darwin – decision under review affirmed

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 7 November 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 2 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 the criteria of genuine temporary entrant was not met.

   Background

4. The applicant is a citizen of Nepal and is currently 13 years old. He arrived in Australia with his mother and sister as the holder of a visitor visa. The family declared they have residency permits for Qatar where the father lives and has a business. The applicant’s mother had declared an intention to enter Australia for a 10 day holiday. While in Australia, the applicant and his sister applied for student visas and were enrolled in school in the Northern Territory.

5. As the applicant is a minor, the Tribunal has relied on the intentions of his parents and during the Tribunal hearing, took evidence from his mother who has applied for a Subclass 590 (Student Guardian) visa.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 temporary entrant for study.

9. 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?

10. 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.

11. 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.

12. The applicant arrived in Australia with his mother and sister on 12 August 2016 as the holder of a Subclass 600 Visitor Visa. According to the Department, when applying for a Visitor Visa, the applicant’s mother had declared an intention to travel to Australia for a holiday of approximately 10 days.  In the same application it was declared the family had no relatives or friends in Australia.

13. Following arrival in Australia, the applicant’s mother gave evidence that they stayed with a niece in Darwin, met with an agent and visited schools with a view to the children studying in Australia. According to the Department’s decision record of 7 November 2016, the children were enrolled in school 17 days after the family’s arrival in Australia which suggested the intention in travelling to Australia was not for a holiday but for study.

14. At the Tribunal hearing the applicant’s mother declared she wanted both her children to study up to Year 12, and that her daughter wishes to go on to study at university in Darwin. The applicant’s mother claimed that upon arriving in Australia, she learnt that the education system is very good and when they visited a school, the children liked it, so they decided to study here.

15. The Tribunal has considered the applicant’s circumstances in his home country. According to the evidence, the applicant attended school in Nepal. His sister is here and his mother plans to accompany him as guardian while his father resides in Qatar. As such, the Tribunal does not consider the applicant has a strong incentive to return to his own country. Regarding potential circumstances in Australia, it appears on the evidence that the applicant’s mother wants him to complete his schooling in Australia and given his sister intends to go on to university in Australia, it is likely his mother will want the applicant to also. The Tribunal considers the applicant will have a strong incentive to remain in Australia after completing his schooling and possibly tertiary education here. He will likely have developed ties over and above those of his home country. In considering the applicant’s current schooling, the Tribunal does accept the applicant’s studies will be of value to him in future.

16. The Tribunal has considered the applicant’s immigration history and is not satisfied, based on visa and travel history for Australia and other countries that the applicant is a genuine temporary entrant. The Tribunal considers it unlikely a parent and two children would travel to another country for a short visit and then make the decision to study and reside there for an extended period. The Tribunal considers it would involve considerably more planning and arranging by the parents to do so. The applicant’s representative stressed that the family could have gone to the UK or US to study, the applicant had previously attended a top private school in Nepal and is now attending a prestigious private school in Darwin. This is indicative of careful consideration as to the where the applicant should study and would not have been a decision made quickly as has been claimed. The Tribunal finds that based on the above circumstances, the applicant did not visit Australia for a short holiday, rather his parents already had the intention of enrolling him to study and his mother residing with him.

17. The applicant’s mother declared in her Visitor Visa application that there were no relatives in Australia, the representative’s written submission of 25 November 2016 states: “Originally they came to Australia to visit Sydney. They did not declare Puja Subedi as they thought she was not in Sydney. According to them they did not have any intention not to provide the information”. The Tribunal understands this to mean the niece of the applicant’s mother was not declared as a relative because she lived in Darwin (where the applicant, his mother and sister were going) and not Sydney, which accords with the evidence the applicant’s mother gave at the Tribunal hearing. The Tribunal does not accept it was an innocent mistake to declare no relatives in Australia. The question clearly refers to ‘Australia’ and could not be interpreted to mean relatives in the city or state that the family is travelling to, as was claimed by the applicant’s mother. A large number of diverse countries had been visited prior to the applicant’s mother travelling to Australia and as a result, she would be familiar with travel, applying for visas and completing associated documentation.

18. The applicant’s parents provided evidence of assets, income and available funds to support the two children while they study in Australia. It was claimed the parents are able to pay for the children’s enrolment and education in a private school in the Northern Territory based on their father’s profitable business in Qatar as well as income and assets.

19. The Tribunal acknowledges the applicant is currently enrolled in school and studying. It also accepts the applicant’s parents appear to have the financial means to support him in Australia. However, considering the immigration history, incorrect information provided by the applicant’s mother about the purpose of the visit to Australia and about the presence of relatives in Australia, the Tribunal is not satisfied the applicant meets the criteria of a genuine temporary entrant.

20. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

21. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

22. 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

23. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Wendy Banfield
    Member