MAHARJAN (Migration) - [2020] AATA 3879

MAHARJAN (Migration) [2020] AATA 3879 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sujita MAHARJAN
Mr Ratna Kaji Maharjan
CASE NUMBER:  1802478
HOME AFFAIRS REFERENCE(S):          BCC2017/4166785
MEMBER:Peter Newton
DATE:4 September 2020
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 4 September 2020 at 4:35pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study and work history – incentives to remain or return – family, economic and cultural ties to home country – work and established friendships in Australia – satisfactory course progress – intention to work in home country – relevance of study to current and future work – member of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

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 19 January 2018 (Department’s Decision) to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (Act).

2. The applicants applied for the visas on 8 November 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (who unless otherwise stated, I will refer to as 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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 22 April 2020 by telephone to give evidence and present arguments. The applicants were assisted in relation to the review by their registered migration agent (Mr Chahal). Mr Chahal attended the hearing by telephone and made submissions.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone. During the hearing the Tribunal was satisfied that the applicant heard and understood the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MAHARJAN (Migration)

Details

AGLC: MAHARJAN (Migration) [2020] AATA 3879
Case: [2020] AATA 3879
Decision Date: 4 September 2020

CaseChat Overview and Summary

The applicant, Ms. Maharjan, sought review of a decision to refuse her Student (Temporary) (Class TU) visa, subclass 500 (Student) visa. The primary issue before the court was whether Ms. Maharjan was a genuine temporary entrant, considering her study and work history, her ties to her home country, and her intentions upon completion of her studies.

The court was required to determine if Ms. Maharjan's current course of study would assist her in obtaining employment or improving her employment prospects in her home country. This involved an assessment of the relevance of her chosen program to her stated career aspirations and the credibility of the evidence presented to support these claims. The court also considered the applicant's established friendships and work in Australia, and the incentives for her to remain or return to her home country, including family, economic, and cultural ties.

In its reasoning, the court found that the applicant's submissions and evidence did not sufficiently demonstrate how her current course of study would assist her in securing employment or enhancing her career prospects in Nepal. While the applicant expressed an intention to work for multinational companies in her home country and provided an article listing high-paying jobs, the court was not satisfied that this evidence established a clear link between her qualifications and future employment opportunities. Consequently, the court gave the specified factors some, but no significant, weight in favour of the applicant. The decision under review was remitted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

During the hearing, the applicant indicated that upon completing her current course of study, she intends to return to her home country for purse work in a management team with a multinational company. The Written Submissions state:“The sole purpose to study the enrolled courses in is to obtain the qualifications required for availing employment opportunities such as Sales executives, Business managers, Executive Assistants at some of the biggest private sector companies in Nepal. Some of the prominent multinational companies where she wishes to build her career in future include Chaudhary Group, Coca Cola, Unilever etc. Majority of these multinational companies, expects its employees to have competencies in the business management and team management skills. Some of the key competencies are as follows:·Team building, leadership·Adapt with transitional culture to manage overseas clients se Number: 1802478·Good written & verbal Communication.The courses of leadership and management are specially designed to build competencies in these specific skills. The courses in the enrolled program covers all aspects including effective business management practices, team management and good communication skills. Courses such as Lead team management effectiveness, manage quality customer service, manage operational plan etc. are the courses included in the courses specially designed to build business management and team management competencies, essential for business managers in today’s era. Also being short and specific, the leadership managementdiploma courses are an ideal choice for certain students who wish to build strength in more relevant field. This is more effective than completing an extensive degree program which would include some nonessential courses as part of its curriculum. Therefore, the Leadership management programs have a direct relevance to the applicant’s future career goals.” During the hearing, the applicant indicated that she obtained information from her sister about obtaining work in her home country using the qualifications to be gained from her current course of study. The applicant provided to the Tribunal a printout titled ‘BEST PAYING JOBS IN NEPAL [TOP 15 JOBS IN NEPAL]. The article provided what it describes as a “sneak peak into the best paying jobs I Nepal in descending order.” The above submissions and evidence do not enable me to make an informed assessment of whether the applicant’s current course of study will assist her to obtain employment or improve her employment prospects in her home country. In relation to the question of whether the applicant’s current course of study will assist the applicant to obtain employment or improve employment prospects in her home country, I am not satisfied that the applicant’s current course of study will assist her to obtain employment or improve employment prospects in her home country or region. Overall, on the evaluative exercise I am required to undertake, I give the factors specified in 12(a) of the Direction some but no significant weight against the applicant.