Mahato (Migration)

[2018] AATA 2462

Mahato (Migration) [2018] AATA 2462 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Smriti Mahato

CASE NUMBER:  1616693

HOME AFFAIRS REFERENCE(S):           BCC2016/2392243

MEMBER:Wendy Banfield

DATE:5 June 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 05 June 2018 at 10:27am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Career plan – No work experience in home country – Value of current course – Husband in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 27 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 18 July 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 29 years old. She came to Australia in 2009 to undertake studies in Business. The applicant is married to a fellow Nepali national who is also a student. Since arriving in Australia the applicant has completed courses in Business, Management, Accounting and Translating. She is currently enrolled in a Diploma of Human Resource Management.

5. The applicant appeared before the Tribunal on 8 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

   Evidence of the visa applicant

7. The applicant confirmed she came to Australia in 2009 and said her intention had been to finish a Business Management degree. She said she began with a Certificate in Business Management and then completed a Bachelor of Business in 2014. The applicant said she studied Accounting in Australia because it is taught with a practical focus while in Nepal it is mostly theory.

8. According to the applicant, although she had studied Accounting, she is now pursuing Human Resources (HR) as she believes it will allow her to get a good job managing people. The Tribunal asked the applicant why she had also studied Information Technology (IT). The applicant said her agent had given her the wrong information by telling her it will give her a longer visa period; however she said she saw it as an opportunity to gain extra skills along with HR. The applicant advised she had also undertaken a professional year following her degree. The applicant was asked why she took a Diploma of Translating and she said it would help her to get a job in Nepal. The applicant then said she was still planning to work in Accounting but HR would be an extra skill. She said she can be an Accountant and work in HR as well since it is not a distinct field in Nepal.

9. The applicant said she is not planning any further study because she has not been back to Nepal since 2012 and wants to see her parents. She said she married in May 2017 to a fellow Nepali student also studying in Australia. She also has a sister in Brisbane but it was claimed they do not get on well. The applicant said she and her husband both want to go back to Nepal after their studies. The applicant currently works in a fast food restaurant in customer service. The Tribunal asked whether she had work experience in her chosen field and she said she did an internship during her graduate year.

10. The applicant explained she had not been back to Nepal since 2012 because she met and married a man from a different caste. She said her parents had told her to come back home as they wanted her to marry someone else so she did not feel safe to go back to her own country. The applicant declared that when she does go back to Nepal she can stay with her husband’s family. She then declared her parents have now accepted her marriage.

11. When asked about her incentive to return to Nepal, the applicant said she wants to apply her skills in Nepal. She said she thinks she will have enough knowledge to build a career after finishing her current course. The applicant said she also wants to be with her parents again as they are getting old. Regarding ongoing ties to Nepal, the applicant said there is only her parent’s house. Prior to coming to Australia, the applicant had completed Year 12 equivalent and had not worked in Nepal. She has primarily worked in customer service since she came to Australia.

    Representative’s submission

12. Mr Bhatta advised the Tribunal that the applicant had not returned to Nepal since 2012 because of her relationship with a person of a different caste. He said now that the applicant is married she will be able to stay in her husband’s family home. Mr Bhatta said the applicant’s parents own assets which will be inherited by her. It was also claimed that the applicant’s studied in Australia will allow her to obtain a job in a bank or similar and the HR course she is taking will be a valuable element to her qualifications.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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 as required for the grant of a student visa.

15. 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?

16. 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.

17. 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.

18. The applicant’s evidence is that prior to coming to Australia in 2009 she had completed her high school education but had not worked in Nepal. The applicant declared she intends to find work in her own country as an Accountant but hopes to be able to use her studies in HR as well. She said she believes all the courses completed in Australia will be of benefit in future. The representative made submissions that the applicant will be able to find employment in a bank or a similar field.

19. The applicant gave an explanation as to why she had not returned to Nepal since 2012. She said it was because of her marriage that was not approved of by her parents. According to the applicant her parents wanted her to return and marry someone of their choosing and as a result, she did not feel it was safe to go. The applicant said during the hearing that her parents have accepted the relationship over time and she now wants to return to Nepal to see them. However, the applicant also said that when she returns to her own country she will be able to live with her husband’s family, which suggests she still has concerns about the views of her own family.

20. While in Australia the applicant has been employed in customer service in the fast food industry. She has her husband here who is also a student as well as a sister; although the applicant declared they are not close.

21. The Tribunal has considered the evidence individually and cumulatively and is not satisfied the applicant intends to leave Australia after she completes her current course. The applicant does not appear to have a clear plan for her career in Nepal; she has no work experience there and has not demonstrated sufficiently the value of a Diploma in Human Resource Management when she intends to work as an Accountant. The applicant said Human Resources is not an established field in Nepal but she expects it will be useful to her. The Tribunal does not find this claim to be realistic and the applicant’s evidence in this regard was vague. She did not appear to have done any research about the feasibility of utilising her HR qualifications, along with Accounting in the future. The Tribunal finds it unlikely an employer would engage the applicant to work across accounts and human resources when she does not have work experience in those areas.

22. The Tribunal considers the applicant has reasons to remain in Australia. These reasons include the applicant’s husband being in the country with her, her past difficult relationship with her parents due to marrying without their approval, the amount of time since she has returned to Nepal and her ongoing employment. Although it was claimed the applicant will inherit assets from her parents, there is no evidence to support this and no explanation as to how this would be an incentive to return to Nepal. According to the evidence, the applicant has not wanted to return to her own country since committing to a relationship her parents did not approve of and the Tribunal considers this to be an incentive to remain in Australia.

23. The Tribunal notes the applicant agreed to enrol in an IT course (not completed) because her agent at the time told her it would result in a longer student visa. The Tribunal does not consider this to be a legitimate reason to enrol in a course of study. The applicant also completed an Advanced Diploma of Translating without apparent purpose other than adding to a range of qualifications. This indicates the applicant is willing to continue studying in order to remain in Australia than due to a genuine interest in the subject area.

24. 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).

25. 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.

26. 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

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

    Wendy Banfield
    Member