Maharjan (Migration)

[2019] AATA 1156

Maharjan (Migration) [2019] AATA 1156 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Reji Maharjan
Mr Tejendra Gurung

CASE NUMBER:  1706577

HOME AFFAIRS REFERENCE(S):           BCC2017/369355

MEMBER:Stephen Conwell

DATE:10 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 10 January 2019 at 12:48pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Leadership and Management – does not genuinely intend to stay temporarily in Australia – not genuine student – completed multiple courses  – not enrolled in course for nine months – established ties in Australia – no incentive to cease residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218, 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 Immigration and Border Protection on 29 March 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 January 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 it was determined the genuine temporary entrant criteria were not met.

4. The applicants were assisted in relation to the review by their registered migration agent.

5. Where used in this decision:

   a.COE refers to Confirmation of Enrolment;

   b.VET refers to Vocational Education and Training;

   c.The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection); 

   d.‘Direction 69’ or ‘the Direction’ refer 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 under the requirements of cl.500.212 of the Regulations.

8. 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.

   Background

9. The applicant is a citizen of Nepal who first arrived in Australia in 2008 on a Student visa sub-class TU 572. Her spouse is the secondary applicant who has also been onshore for approximately 10 years and has been overseas only for a cumulative period of 10 weeks. As noted by the delegate, since her first arrival in Australia, the applicant had (at the time of decision) been overseas only twice for a cumulative period of ten weeks.

10. At the time of application for the visa which is the subject of this review, the applicant had been enrolled to study a Diploma of Leadership and Management from 30 January 2017 to 17 December 2017, which she duly completed. When she participated by telephone at a Tribunal hearing on 11 September 2018, the applicant was enrolled in an Advanced Diploma of Leadership and Management for the period 10 September 2018 to 8 March 2020. The Confirmation of Enrolment (COE) indicated that she had enrolled in this course on 4 September 2018, a few days before the scheduled hearing.

11. The applicant provided the following documentary evidence:

    ·    A written submission dated 5 September 2018 in support of the application;

    ·    copies of certificates and academic transcripts in respect of the following courses:

    oAdvanced Diploma of Hospitality Management – issued 29 April 2011;

    oMaster of Professional Accounting (Extended);

    oDiploma of Business Administration ­– academic transcript (incomplete)

    oGraduate Diploma in Business – Statement of Results issued 21 May 2015;

    oMaster of Business Administration;

    oDiploma of Leadership and Management; and

    oCOE for an Advanced Diploma of Leadership and Management.

    Hearing - 11 September 2018

12. The applicants and their representative participated in the hearing by telephone. The applicant said she came to Australia to study an Advanced Diploma of Hospitality Management from October 2008 to July 2011.  She then enrolled in a Diploma of Business Administration however as she had already completed a Bachelor of Business Studies in Nepal, she decided to transfer to a Master of Professional Accounting (MPA) which she completed early in 2012.  The applicant went on to complete further units of the MPA course in 2013 and 2014.

13. The applicant then enrolled in a General English course which she completed in September 2014.  The applicant then enrolled in a Master of Business Administration (MBA) for the period 10 November 2014 to 31 December 2015.  She completed the MBA early in September 2015.

14. At the time of her current visa application the applicant was enrolled in a Diploma of Leadership and Management for the period 30 January 2017 to 17 December 2017, which she completed.

15. In regard to her circumstances in her home country of Nepal, the Tribunal notes that her parents and other siblings remain in Nepal.  The families of both applicants are set to be financially comfortable and able to support the applicant’s during their stay and study in Australia.

16. The applicants are in contact with their families in Nepal several times a week via social media.  The applicants confirmed that they have made only two visits back to Nepal in the 10 years they have been onshore.  They also travelled to Singapore for a two-week visit.

17. In regard to their potential circumstances in Australia, the secondary applicant, Tejendra Gurung arrived in Australia in 2007 on a Student visa to study a Diploma of Hospitality, which he completed.  His primary Student Visa ended in 2009. The applicants were married in Australia in 2010.  There are no children from the marriage.

18. The applicant stated that she has worked regularly during her time in Australia however at all times she has complied with her visa conditions.  Both applicants claim that the income from their employment in Australia supplements the costs of their stay and study onshore.  The applicant stated that her employment and income has been documented and recorded for taxation purposes.  She has not worked for cash payment nor has she been able to remit monies back to Nepal.

19. The applicants have established ties in Australia both through the small Nepalese community and through their respective employment.  The applicant has a sister who is also in Australia since 2014 on a Student Visa and living in Sydney.

20. The applicant claims that her ongoing study in Australia continues to add value to her future; she did not agree with the proposition put forward by the Tribunal that her 11 years of stay and study in Australia caused the Tribunal to question whether she was making genuine academic progress.

21. Prior to a decision being made in this case, the applicant was invited to comment on her non-enrolment for the period between 17 December 2017 and 4 September 2018, a period of almost nine months. The Tribunal regarded this ‘study gap’ as adverse information and invited the applicant to respond.

    359A letter

22. After the hearing, but prior to a decision being made in the case, the Tribunal wrote to the applicant on 18 September 2018 inviting her to comment or respond to information:

    On 11 September 2018 you attended a telephone hearing and provided evidence in support of your application for review. At the time of the hearing you were enrolled in a course of study - the Advanced Diploma of Leadership and Management for the period, 4 September 2018 to 8 March 2020 - however the Confirmation of Enrolment (COE) that you submitted shows that you enrolled in this course on 4 September 2018, a week before the scheduled hearing date.

    Invitation to comment on or respond to information

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The information is from your Provider Registration and International Student Management System (PRISM) records, dated 17 August 2018. PRISMS is a database showing enrolment details for student visa holders in Australia.

    The particulars of the information are:

    ·Your PRISMS records show that you completed the Diploma of Leadership and Management on 17 December 2017.

    ·Your PRISMS records show no evidence of enrolment in any other approved course of study for the period between 17 December 2017 and 4 September 2018. It therefore appears that you were not enrolled in a course of study from that date until your recent enrolment on 4 September 2018, a period of almost 9 months.

23. The applicant was advised the information is relevant to the review because as it may lead the Tribunal to find that this information indicates that the applicant is not a genuine applicant for entry and stay as a student because her lack of enrolment during the ‘study gap’ and lack of academic progress indicates it is not her intention to remain in Australia temporarily and progress academically.

24. On 2 October 2018 the applicant’s representative wrote to the Tribunal attaching the applicant’s response of the same date, which stated/set out:

    ·That the reason for her non-enrolment during her study gap of nine months was because she was awaiting the Tribunal’s decision.

    ·She had enrolled in the Advanced Diploma of Leadership and Management because her employment at Woolworths Supermarkets, whilst living in Tasmania, convinced her that this advanced qualification would assist her in pursuing more senior executive positions.

    ·“Whilst looking for the job, visa was one of the obstacles(sic). Most companies would not employ without a proper visa, so to be on the safe side I applied for temporary working visa.”

    ·The work histories of both applicants.

    Does the applicant intend genuinely to stay in Australia temporarily?

25. 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 (GTE) 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.

26. 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.

27. The Tribunal has considered all the above information, including the applicant’s Statements in support of her latest visa application and her response to the Tribunal’s questions pursuant to s.359A. It has regard to the factors in Direction 69.

28. The applicant’s claims that she enjoys Australia’s lifestyle and study environment.  She claims that her current studies in Leadership and Management add value to her career prospects. The Tribunal is not persuaded by these submissions. The applicant completed a Master of Professional Accounting (MPA) in 2012 and then studied ‘extension subjects in this course during 2013 and 2014; she then completed an English course in 2014 for reasons which are unclear. The Tribunal is not convinced that such a course would be necessary for someone who has just completed a master’s qualification in English. The applicant completed an MBA (early) in September 2015.

29. The Tribunal finds that the applicant had a very definite choice both upon completion of her MPA in 2012 and again at the end of 2015 (upon completing the MBA) to yield to her personal incentives to return to Nepal. The Tribunal finds that at these junctures, the applicant had more than sufficient skills, knowledge and qualifications for the business career that she claims awaits her there.

30. The applicant has not provided a satisfactory explanation for her desire to remain in Australia to pursue further study. Nor is the Tribunal satisfied that her proposed course of study will add value to her stated career or remuneration prospects.

31. The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 69 that would prevent her from returning to Nepal and the Tribunal makes no findings against the applicant based on:

    ·any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·circumstances in the home country relative to Australia or any other country;  or

    ·the applicant’s circumstances in the home country relative to others in that country.

32. The applicant confirmed that she and her husband have departed Australia on only three occasions since their respective arrive onshore. The Tribunal finds that the applicants have become acculturalised to living in Australia and no doubt now has an established network of friends through their work and community activities. The Tribunal finds that the lengthy period of time that both applicants has spent in Australia gives them no effective incentive to cease residence in Australia.

33. On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, she appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and she does not genuinely intend to stay in Australia temporarily.

34. Overall, given the length of her stay onshore, her study history, immigration history, and the lack of value of the courses to her future, the Tribunal finds that the applicant is using the Student visa program to circumvent the intention of migration programs.  The Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that she genuinely intends to stay in Australia temporarily.

35. On the basis of the above, and having considered any other matters it considers relevant, 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).

    Any other relevant matters

36. There are no other relevant matters.

    Conclusion on cl.500.212

37. In weighing up the evidence the Tribunal is not persuaded by the applicant’s stated claim to be a genuine student intending to reside temporarily in Australia and having strong ties to her home country. The Tribunal finds the applicant’s potential circumstances in Australia, her study history and his immigration history,  show the applicant to be, not a genuine student and genuine temporary entrant, but rather someone who is using the Student visa program to maintain residence in Australia indefinitely.

38. 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).

39. Therefore 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.

40. 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.

    Dependent applicant

41. The dependent applicant, Mr Tejendra Gurung is a member of the applicant’s family unit. He must satisfy the requirements of cl. 500.311.

42. As the applicant does not meet the criteria for the grant of the visa, the Tribunal must also affirm the decision to refuse the grant of a Student visa to the dependent applicant, since he fails to satisfy cl. 500.311.

    DECISION

43. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Stephen Conwell
    Member