Mainali (Migration)

[2020] AATA 1701

Mainali (Migration) [2020] AATA 1701 (26 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Suman Mainali
Mrs Nisha KHAREL

CASE NUMBER:  1916222

DIBP REFERENCE(S):  BCC2019/1246626

MEMBER:Robert Cumming

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 March 2020 at 3:19 pm (QLD time)

DATE OF WRITTEN RECORD:                15 April 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine temporary entrant criterion not met – frequent changes of courses– not a significant incentive for the applicant to return to home country – maintain ongoing 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

APPLICATION FOR REVIEW

1. At the hearing of this application on 26 March 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 June 2019 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under s.65 of the Migration Act 1958 (the Act).

3. The primary review applicant (the applicant) applied for the visa on 12 March 2019.  At the time of the 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. 

4. The delegate in this case refused to grant the visa on the basis the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

5. The applicant, or rather both the applicant and the secondary applicant who supported her husband during the course of the hearing, appeared by telephone before the Tribunal on 26 March 2020 to give evidence and present arguments. 

6. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined that 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 for providing a mechanism for review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

7. It was put to the applicant at hearing as to his acceptance of conducting the hearing by telephone and he accepted and agreed to that course of action having previously indicated he would do so.  The Tribunal therefore is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE  

10. 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 the 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.

    Genuine applicant for entry and stay as a student (cl.500.212) 

11. 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?

12. 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, a copy of which was provided to the applicant in the course of the application by the Tribunal, 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.

13. 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.

14. The Tribunal has had regard to all the information supplied to the Department of Home Affairs with the visa application (which is on the Departmental file provided to the Tribunal) and all the information supplied to the Tribunal by the applicant.  In particular, the Tribunal notes the completed Request for Student Visa Information form (the information form) received by the Tribunal on 11 December 2019 together with supporting submissions at that stage, as well as the further submissions and supporting documentation supplied to the Tribunal on 25 March 2020 and in addition, also, the oral evidence and submissions given by the applicant at the hearing.

15. The Tribunal notes that it has on its file certain information which was not provided by the applicant.  These were printouts from the Provider Registration and International Student Management System (PRISMS) and also the Departmental movement records. 

16. Accordingly, out of fairness and in accordance with s.359AA of the Act, the Tribunal arranged for copies of these printouts to be sent to the applicant and his registered migration agent prior to the hearing and the applicant had them available at hearing and was given time to consider the material and to comment upon it. Having had time to consider the material, the applicant indicated to the Tribunal when asked that he did not require any additional time to consider the information and did not intend to seek an adjournment to make submissions in relation to the information in the printouts. The applicant did not challenge the accuracy of the information in the printouts.

17. Based on all of that information, the applicant’s circumstances may be summarised as follows:

    (a)The applicant is a 26 year old citizen of Nepal who first arrived in Australia on 12 October 2015. 

    (b)The applicant has links in his home country in the form of his parents.  He describes his parents as upper-middle class and they have been supporting him and his wife to meet the costs of living and studying in Australia. 

    (c)Were the applicant required to return home, he indicated that while he would have the stigma associated with not completing his course to contend with, he nevertheless would not be financially disadvantaged as the family would be there to support him and his wife in that regard. 

    (d)The applicant keeps in contact with his family fairly regularly, largely on an approximately three times a week basis. 

    (e)The applicant indicated in the completed information form that he had no concerns in respect to requirements for military service commitments or for political and civil unrest in the area of Nepal where his family lives.

    (f)In Australia, the applicant has a small circle of friends, largely from college who he associates with for meals and study and apart from that, during his and his wife’s free time, they would also have outings during the month. 

    (g)The applicant has worked in Australia for Asset Link as a cleaner since March 2016, for which he earns approximately $40,000 annually, working up to 40 hours per fortnight.  He previously worked for the Turkish Catering Company as a chef from April 2017 to June 2018.  His wife, the secondary applicant, works in a housekeeping position on a casual basis, also up to 40 hours per fortnight and she earns approximately $35,000 annually for those efforts.

    (h)Other than that, as noted, previously the applicant’s family has been supporting him and in answer to the question put to him, the applicant indicated that his family did provide the bulk of the financial support for him and his wife to live and for him to study in Australia.

    (i)When the applicant came to Australia, he initially undertook English for Academic Purpose studies, which he duly completed during the period from November 2015 through to February 2016.  He then initially attempted a Bachelor of Business (Tourism, Leisure and Event Management).  However, that did not work out and was largely as a result of some discussion with his friends about taking those studies and those studies did not in fact take place. 

    (j)Then the applicant, from about March 2016, undertook a Bachelor of Professional Accounting.  That did not go as well as the applicant had planned.  He struggled with the studies and passed approximately six out of 10 subjects during the time he undertook the course and eventually ceased those studies. 

    (k)The applicant then attempted studies in the vocational, educational and training sector.  Essentially he undertook vehicle mechanic studies which consisted of a package of courses including Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology.  He undertook some of these studies, but then realised that that was not for him and he changed the subject matter of his studies again to undertake the package of courses consisting of Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. 

    (l)As a result, the PRISMS records which the applicant commented on show cancellation of a number of those vehicle mechanic courses, but however, that is the natural consequence of changing the subject matter of his studies from vehicle mechanics to catering.

    (m)The applicant has been undertaking his Certificate IV in Commercial Cookery since approximately March 2019 and is due to complete those studies in July 2020.  The applicant initially had provided an academic record showing completion of a smaller number of competencies.  However, during the hearing, in company with his agent, he confirmed that he in fact had completed 28 competencies and that he had two further competencies to complete.  There was an attempt to transmit that record to the Tribunal; however, it appears that it has not been received by the Tribunal.  The Tribunal, however, is prepared to accept the evidence of the applicant in that regard.

    (n)After Certificate IV, the applicant will have a Diploma of Hospitality Management to complete which he is due to complete in February 2021. 

    (o)As to the impact on his studies of the COVID-19 pandemic, the applicant indicated to the Tribunal that the studies were able to continue on an online basis. 

    (p)In regard to the applicant’s future intentions, the applicant indicates that with regard to family property, which will be transferred to him, he will have an area which he can conduct his business.  Those plans which, on the applicant’s timings would be due to commence in approximately a year’s time, are not yet well advanced.  However, the applicant indicated that it would likely be in the form of a restaurant, a hotel or a business involved in the hospitality or catering industry.  His wife, the secondary applicant, would be involved in the administration and financial management of that particular business on return to Nepal.

    (q)Based on the information supplied by the applicant to the Tribunal in the information form (and as he confirmed with regard to the movement records), since his arrival in Australia on 12 October 2015, he has departed on only one occasion and this was between 12 February 2017 and 27 March 2017. 

    (r)In the material the applicant supplied to the Tribunal, he gave sufficient evidence of his knowledge of living in Australia and also his current courses of study and proposed course of study and the associated education provider.

    (s)As to previous visas, the applicant had been granted one student visa previously, this was for the period of September 2015 through to March 2019 at which stage he applied for another student visa.  Today’s application is the review of that refusal decision by the Department. 

    (t)The applicant told the Tribunal that he had not applied for any other visas in Australia and had not had any other of his visas refused or cancelled.  He did say that he had complied with his visa conditions, however, there was an issue in that regard (going to level of study being undertaken), which was highlighted in the delegate’s decision.  However, for the purposes of the decision today, the Tribunal is not making an adverse finding in relation to that, noting that applicants are, in accordance with Direction No.69, to be allowed reasonable opportunity to change courses of study.  Moreover, at the time he applied for studies, there were differentiations between higher education student visas and vocational education and training visas, but these have now been amalgamated into a single class of student visa. 

    (u)The applicant gave evidence that his travels have only involved travel between Nepal and Australia and he has not travelled to any other countries. 

    (v)Apart from dealing with the issues of concern and explaining his situation regarding his studies in greater detail and his general statement of intention for his future career, which will be discussed later in these reasons, the applicant did not suggest there were, or give evidence concerning, any other matters which may relate to his genuine temporary entrant status in Australia.

18. During the hearing, the Tribunal put to the applicant possible concerns it may have in respect to several issues.

19. In no particular order, the first issue to consider which the applicant was questioned in relation to related to why the applicant was not studying in Nepal. The applicant indicated that the quality of education in Australia was superior and as a result, would set up the conditions for his business being more successful in Nepal, both in terms of appearance in the market when compared to locally-based businesses or those run by persons with local qualifications, and the ability to generate better loan conditions from any financier for the business.

20. The related issue put to the applicant was that as the applicant was running his own business, he would not be competing with anyone else and did not need those qualifications.  That was largely covered by the applicant in relation to the comments he had made relating to the fact that his international qualifications would assist the business to stand out.

21. The applicant was also questioned in relation to the frequent changes of courses.  The applicant indicated that he had certainly tried his best on the courses of studies he had undertaken and it was really the situation now that there were some problems early on, but they were behind him now and he was well-advanced with his studies. In fact, he only had two more competencies to complete in his current Certificate IV and then had only until approximately a little under 12 months’ time by which time he would have completed his studies.  He highlighted the issue that with the support his family had provided, for him not to get those studies would cause distress to him and to the family.

22. Another issue of concern relates to the fact that the applicant had travelled only on one occasion back home to Nepal.  Again, the applicant highlighted that he had been concentrating on other issues, such as study and did not have the time to go back.

23. As noted above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl.500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.

24. In assessing whether an applicant meets that genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69.  As also noted above, that direction is not to be used as a checklist but rather is intended to guide decision-makers in considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies that genuine temporary entrant criterion. 

25. In adopting that process in this case, and after having considered all the factors in the Direction, the Tribunal finds that some of those factors are not of such significance, importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors have been overlooked but rather the Tribunal, in considering its decision, has found these factors of lesser weight in balancing all those factors in coming to its decision overall on the merits of that review application. 

26. Having had regard to the applicant’s evidence and submissions and his responses to the possible concerns raised by the Tribunal, as considered above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:

    (a)While the Tribunal can accept the applicant’s reasons for initially undertaking English language studies in an English speaking country, the Tribunal does have concerns about the particular changes in courses of study and other factors, such as that as the applicant proposes to run his own business, foreign qualifications are not essential. However, balancing all the considerations the Tribunal is prepared to accept the applicant’s suggestions that his international qualifications will stand his business in slightly better stead and on the slightest of balances, the Tribunal can accept the reasons for study in Australia.

    (b)The applicant has links in his home country in the form of his parents and his parents-in-law and will in due course inherit property there.  However, the applicant’s conduct in remaining in Australia with only one visit back totalling approximately only six weeks in roughly four and a half years, and the fact that he is here in Australia with his wife, where both of the applicants are working, earning a combined annual salary of approximately $75,000 on the evidence given, as against costs of living in Australia as advised in the information form, being of the order of $40,000, the fact that the applicant indicated the bulk of the expenses are covered by his parents and he has the ability to remain in contact with them on a regular basis by electronic means, all lead the Tribunal to the conclusion that there is not a significant incentive for the applicant to return to his home country.

    (c)As to economic circumstances in the applicant’s home country, the Tribunal notes that there would be family support if the applicant had to return.  The applicant indicated that there would be angst within the family if he returned without qualifications; however, while that aspect may serve as an incentive not to return home, the fact of family support does lead the Tribunal when it considers economic circumstances of the applicant in his home country, Nepal, would not present a significant incentive for him not to return to his home country.

    (d)There are no requirements for military service commitments affecting the applicant which would present a significant incentive for him not to return to his home country. 

    (e)There are no circumstances of political and civil unrest in the area where the applicant’s family are located, in his home country, Nepal, which would present a significant incentive for him not to return to Nepal.

    (f)In considering the circumstances in his home country, relative to the circumstances of others in that country, the Tribunal finds the applicant comes from an upper-middle class family, but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.

    (g)The applicant has ties in Australia, namely his wife and a small circle of friends whom he socialises with.  Both he and his wife have work and are earning money well in excess of the costs they are incurring to stay here and study.  And given they have the family support on top of that, this leads to the conclusion that the applicant and his wife have made a life for themselves here and there is not a significant incentive for them to return home but rather the incentive is to remain here in Australia. Accordingly, the Tribunal concludes that the student visa program is being used to circumvent the intentions of the migration program. 

    (h)For those reasons also, the Tribunal finds that the student visa is being used to maintain ongoing residence in Australia. 

    (i)Because the secondary applicant is a citizen of Nepal and the applicant does not thereby gain any benefit in a citizenship sense, the Tribunal does not consider that the applicant has contrived to enter a relationship for a successful visa outcome. 

    (j)As to the applicant’s knowledge of living in Australia, the Tribunal is satisfied the applicant has demonstrated sufficient knowledge of living in Australia, his course of study and the associated education provider. 

    (k)As to the current undertaking of studies by the applicant, the Tribunal notes there has been at least four changes of mind from Bachelor of Business through to Bachelor of Professional Accounting to vehicle mechanic studies and ultimately catering-based studies. 

    (l)The applicant has indicated that he wishes to work in a business related to either catering or hotel management on his return to Nepal and accordingly, in a strict sense, the applicant’s studies are consistent with his desire for future employment. However, they are to some degree out of kilter with earlier studies. While it is accepted there can be reasonable changes to career paths, seemingly there have been more than reasonable changes in this instance.  The overall impression, however, on that aspect of relevance to proposed future employment in the strict sense, it can be said the applicant is undertaking consistent studies in that regard. 

    (m)As to remuneration the applicant could expect to receive, the applicant did suggest that the cost of living and operating a business in Australia as opposed to Nepal would be greater because he is set up with family support and land and other property and financial resources, which means he would not have to incur those as he would in Australia.  And accordingly he considers that that situation makes him better placed for business in Nepal and the Tribunal is prepared to accept that explanation.

    (n)At the hearing, the applicant had been in Australia for some four and a half years during which time he had returned to his country on one occasion for approximately six weeks.  Were he to remain to the conclusion of his proposed studies, as per the schedule of those courses, he will have been in Australia for approximately five and a half years. 

    (o)As to previous visa applications for the applicant, but for the current visa application under review, the applicant has successfully been granted one prior student visa and there is no evidence to suggest that any other visas he has applied for have been cancelled or that any other visas he has applied for have been refused.

    (p)As to compliance with visa conditions, the findings of the delegate in their decision have been noted, however, in the circumstances, as previously discussed, the Tribunal is not prepared to take an adverse finding against the applicant and at best that finding would be a neutral finding.

    (q)As to travel to other countries, there is no evidence before the Tribunal that the applicant has travelled to countries other than Nepal and Australia, which makes it unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other country. 

    (r)As noted, were the applicant to remain in Australia for completion of his studies, he would have been in Australia for approximately five and a half years.  This is in circumstances where the Tribunal is concerned as to the changes of subject matter of his courses, the fact that to date he has not successfully completed any courses although it is conceded that he is about to complete one course, a course of approximately 18 months duration.  He will have taken approximately four and three quarter years to have achieved that. Additionally, there is the fact that he is well set up in Australia with his earnings, which he and his wife earn from their work, and the fact that he can keep in contact with his parents regularly as previously mentioned, all of which lead the Tribunal to the conclusion that the use of the applicant’s student visa is primarily for the maintenance of ongoing residence in Australia.

    (s)As there is no child it is unnecessary for the Tribunal to make any findings in respect to the intentions of the applicant as a parent. 

    (t)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant. 

1. Balancing all these findings, the Tribunal considers the weight of the evidence points more to those factors not favouring the applicant’s case rather than factors which are supportive of his case.  Through that balancing exercise, weighing the particular factors, the Tribunal considers that those factors of materiality weigh more heavily to establish there is not a significant incentive for the applicant to return to Nepal and that the student visa is being used to maintain ongoing residence in Australia, than do the other factors which are either neutral to, or in the applicant’s favour. 

2. Having had regard to all matters, including the Direction No.69 requirements to which regard is required, 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).

   Conclusion on cl.500.212

3. 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.

4. 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.

   Secondary applicant

5. The secondary applicant’s visa application is dependent on the success or otherwise of the applicant’s visa application. In particular, cl.500.311 of Schedule 2 to the Regulations requires the secondary applicant, Nisha Kharel, to be a member of the family unit of a person who satisfies or has satisfied the primary criteria for a student visa.

6. It follows that because the applicant has been found not to meet the criteria for the grant of a student visa, the secondary applicant does not meet the secondary criteria for the grant of a Subclass 500 (Student) visa and the decision under review must be affirmed. 

   DECISION

7. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas.

   Robert Cumming
   Member