Ligal (Migration)

[2018] AATA 5151

Ligal (Migration) [2018] AATA 5151 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sujan Ligal

CASE NUMBER:  1803605

HOME AFFAIRS REFERENCE(S):           BCC2018/177605

MEMBER:Adrienne Millbank

DATE:13 November 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 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 13 November 2018 at 2:48pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment in subsequent courses – value of the course to future employment – seeking skilled employment in Australia – employment prospects and family ties in Nepal – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.212, 500.611

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 Home Affairs on 30 January 2018 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 was born in Nepal in 1985 and is 33 years old at the time of decision. He first arrived in Australia on 20 October 2013 on a Student (subclass 573) visa, enrolled in a Master of Information Technology Degree course at Central Queensland University. He completed these studies. On 13 January 2016 he was granted a Skilled Graduate (Subclass 485) visa, valid to 13 January 2018.

3. The applicant applied for the visa on 11 January 2018, based on his enrolment in a Diploma of Leadership and Management at Australia Capital College from 8 January 2018 – 8 January 2019. At the time of application he was also enrolled in a Master of Business Administration (MBA) at Holmes Institute from 12 March 2018 – 31 July 2019. His enrolment in the MBA was varied in February 2018 for the reason of non-commencement of studies.

4. 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.

5. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia. The applicant did not provide a Genuine Temporary Entrant statement to the Department elaborating on the value of his proposed course of study for his future, and the Delegate was concerned that the applicant was using the student visa program as a means of maintaining residence in Australia.

6. The applicant appeared before the Tribunal on 6 November 2018, by video from Sydney, to give evidence and present arguments.

7. The applicant was assisted in relation to the review by their registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 intends genuinely to stay in Australia temporarily.

10. 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.

11. 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.

12. 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.

    Does the applicant intend genuinely to stay in Australia temporarily?

13. The applicant at hearing stated that he understood the Delegate’s decision. When asked why he did not provide a genuine temporary entrant statement to the Department, as requested, he said that it was never his intention not to, but felt he needed time to prepare his case. He said he was in the process of putting together his statement when he received the refusal.

14. The Tribunal asked the applicant to clarify his intentions regarding his enrolment in an MBA at Holmes, as his representative had clarified in a written submission to the Tribunal that this course of study is not included in the visa application, that the visa application is based only on his enrolment in the Diploma of Leadership and Management course with an end date of 8 January 2019. The applicant stated that he took the advice of his representative to drop the MBA. The applicant’s representative explained his advice. The applicant already has a Master’s Degree in his field of Information Technology, and in the view of the representative, could obtain the skills and sort of ‘top-up’ managerial qualification he was seeking, to give him a competitive edge in the IT job market in Nepal, by doing a Diploma level course, rather than paying tens of thousands of dollars for another Master’s Degree.

15. Regarding the value of the course to his future employment, the applicant claimed that as IT companies in Nepal ‘take outsourced business from countries like Australia, America and other European nations’, workplaces are growing in size and complexity, and his study experience and qualification in leadership and management from an English speaking country will assist him to take leadership positions. A letter was provided to the Tribunal signed by the Managing Director of Australian Capital College in Canberra, confirming that the applicant is on track to successfully complete his Leadership and Management Diploma course on 8 January 2019. The letter advised the applicant ‘is a student in good standing of the College, having maintained the required student progression rate, attendance, and tuition fee payments. He has met all required milestones and is, to the best of my knowledge, a conscientious and genuine student in good financial standing’. The Tribunal accepts that the Diploma in Leadership and Management will assist the applicant in his future employment in Nepal.

16. Regarding incentives to return to Nepal, in a written submission to the Tribunal the applicant claimed that he needed, as the oldest of three sons, to return to Nepal to care for his parents as ‘they are both getting closer to their 60s’. No claim was made or evidence provided that the applicant’s parents suffer ill-health. The Tribunal does not accept that the applicant’s parents, in their 50s, are in need of the applicant’s presence on account of their age, such as to provide an incentive for him to return home.

17. The applicant further claimed that his father has a watch repair business in the family’s home city of Pokhara, and ‘it becomes my main responsibility to look after his business and expand it further along with my profession’. At hearing the applicant clarified that his father employs two people. When asked to clarify his future intentions, the applicant repeated that it is his intention to apply for positions in IT in Pokhara and other cities in Nepal, but if he is not successful, he would have employment in his father’s business. The Tribunal accepts that the applicant might have some future involvement, and could find employment in, his father’s watch repair business but, in light of his IT qualifications and management studies, finds this provides little incentive for him to return.  

18. Regarding incentives to remain in Australia, the Tribunal notes that the applicant’s two younger brothers are here, one of whom, according to the applicant, has obtained permanent residence. He advised that they came on Student visas around ten years ago, and are living in Townsville and Darwin.

19. The applicant acknowledged that it had been his intention to find skilled employment in his field of IT in Australia, as a pathway to a migration visa. He stated that he tried but did not succeed, while on a Skilled Graduate (Subclass 485) visa from 13 January 2016 – 13 January 2018, to find employment commensurate with his qualifications. He stated that he has only been able to find work in Australia as a cleaner and kitchen hand; that he is working as a cleaner at the time of decision; and for the reason that he has been unable to obtain skilled employment in Australia, on the visas he has held, he has decided to return to Nepal. He stated he intends to return to Nepal on completion of his Diploma, in January 2019.

20. The applicant stated at hearing that he intends to apply initially for a position in his home town of Pokhara, a large tourist town where his parents live and where he has friends. He stated that while he has not yet lodged any applications, his friends have recommended companies to him.

21. While the applicant has obvious incentives to stay in Australia — his brothers are here and Nepal is a poorer country — the Tribunal accepts that the applicant has given up hope, while in the country on a Student visa, of obtaining skilled employment as a pathway to residence. The Tribunal accepts, on the evidence provided that it is the applicant’s intention, at the time of decision, to return to Nepal on the completion of his Diploma course on 8 January 2019. 

22. 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).

    Does the applicant intend to comply with visa conditions?

23. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

24. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

25. There is no information before the Tribunal to indicate that the applicant has not complied with his previous visa conditions, or that leads the Tribunal to doubt his stated intention to comply with any conditions that might be attached to this or any future visa.

26. The applicant impressed the Tribunal as honest when describing his earlier ambitions of obtaining skilled employment in Australia, his growing resignation regarding his prospects, and his current intention to return to Nepal and make a future for himself in his home country on completion of his Diploma course.

27. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

28. No other relevant matter (in addition to the requirements in cl.500.212(a) and (b)) was raised by the applicant, or is before the Tribunal.

29. The Tribunal notes that the applicant will complete his course within two months. Having weighed the evidence and considered the applicant’s circumstances, the Tribunal is satisfied that in the case of this visa application, at the time of decision, the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

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 application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Adrienne Millbank
    Member