Neupane (Migration)

[2018] AATA 3237

Neupane (Migration) [2018] AATA 3237 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bisow Bandhu Neupane
Mrs Kalpana Neupane Banjara
Mr Merrick Neupane
Miss Evelyn Neupane

CASE NUMBER:  1703741

Home Affairs REFERENCE(S):                BCC2016/2307838

MEMBER:Mark Bishop

DATE:11July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 11 July 2018 at 5:11pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – enrolments  requirements – no current offer of enrolment – large number of VET qualifications – experience working in field of study – maintained contact with family in home country – established family household in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211, 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 2 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 9 July 2016. 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 visas 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 delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal.

5. The review application was resolved on the papers.

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 review application is firstly whether the applicant meets Clause 500.2 and clause 500.211 and hence is enrolled in a course of study and secondly whether the applicant intends genuinely to stay temporarily in Australia

8. 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.

9. The Tribunal wrote to the applicant on 12 April 2018 in the following terms:

   ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

   ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

10. The applicant responded to the request for information. The applicant provided a detailed written signed statement to the Tribunal.

11. The applicant provided written consent to the Tribunal deciding the review without a hearing. The applicant advised the Tribunal as follows:

    ·The applicant had concluded a three year I.Com (Business between July 2000 and July 2003;

    ·The applicant has concluded numerous courses in the VET sector in Australia. These courses include Community Welfare, Business, Management, Marketing at Diploma and Advanced Diploma level, Certificate III and IV in Commercial Cookery;

    ·The applicant was granted his initial student visa (TU 572) on 25 June 2008 and arrived in Australia on 12 July 2008. The applicant has been resident in Australia since that time;

    ·The applicant has applied for and been granted numerous student visas, VC 485 or associated bridging visa between 2008 and the present time, a period of almost 10 years;

    ·The applicant has been continuously employed in Australia as a cleaner, dry cleaner or kitchen hand since 2009. Since 2014 until the present time the applicant has been self-employed as an insulation worker;

    ·The applicant has returned home on several occasions generally on a bi-annual basis for family visits;

    ·The applicant has not visited other countries whilst in Australia;

    ·The applicant has members of his immediate family, including parents resident in Nepal;

12. The applicant advised the Tribunal he did not currently have a Confirmation of Enrolment (COE) certificate or letter of offer in a course of study.

13. Clause 500.2 and clause 500.211 require as follows;

    500.2   Primary criteria

    Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

    All criteria must be satisfied at the time a decision is made on the application.

    500.211          One of the following applies:

    (a)       the applicant is enrolled in a course of study;

    (b)if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

    (c)       if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

    (d)       if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

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

15. The applicant gave written consent to the Tribunal to decide the review without a hearing.

16. While the issue before the delegate was whether the applicant was a genuine temporary entrant, the issue before the Tribunal now is whether, at the time of this decision the applicant meets the enrolment requirements for a student visa. This means that the applicant is required to meet cl.500.211 of Schedule 2 to the Migration Regulations.

17. As discussed above the applicant provided written evidence to the Tribunal that he did not hold a current COE and was not enrolled in a course of study. The applicant further advised the Tribunal he was willing to study a Bachelor degree. The applicant did not outline any further detail as to the type of Bachelor course or relate it to future work or employment. The applicant did not indicate when he might enrol in such course. The applicant did not request an extension of time to obtain a COE or seek enrolment in a course of study.

18. The applicant stated he completed a Certificate IV in Commercial Cookery in November 2017.

19. Hence there is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in an approved course of study. Therefore the current pre-requisite for all student visa sub-classes is not met.

20. The applicant has not had enrolment in a registered course since November 2017 and there is no evidence that he is the subject of a confirmation of enrolment at the time of the Tribunal’s decision. Accordingly, the applicant does not meet cl.500.211(a).

21. Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl.500.211.

22. The Tribunal goes on to consider whether the applicant is a  genuine applicant for entry and stay as a student (cl.500.212).

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

23. 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?

24. 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.

25. 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.

26. The applicant provided a series of statements, statements of purpose and relevant supporting documentation to the Department that provided as follows:

    ·Past enrolments in 2010/2011 in Business and Management VET courses;

    ·Cancellation of a COE in December 2010. The Tribunal has considered the explanation proffered by the applicant and make no adverse finding against the applicant on this point;

    ·His wife falling pregnant and his decision to continue studying in Australia;

    ·Support from his parents whilst on a VC485 visa;

    ·Continuing financial support from his parents after the birth of his second child;

    ·The applicant agreed he had studied different courses, unrelated to each other and held his agent responsible for these decisions. He agreed he had not planned his education track well;

    ·The attraction of returning home, seeing family, obtaining assistance and having access to grand-parents was much stronger;

    ·The applicant had decided to open a restaurant in Nepal and at the conclusion of his studies in Commercial Cookery would return to Nepal;

27. The applicant provided documentary information as to title to significant cash and property assets in Nepal.

28. The Tribunal has regard to all of the material outlined above. The Tribunal has regard to all of the material and information on the Department and Tribunal files. The Tribunal has regard to the statements of the applicant.

29. The Tribunal has regard to Direction 69.

30. The Tribunal has regard to the applicant's circumstances in his home country, the applicant’s potential circumstances in Australia, the value of the course to the applicant’s future and the applicant’s immigration history.

31. The evidence, material and statements provided by the applicant show he has been resident in Australia for nearly 10 years, now has his own family, maintains contact with his extended family in Nepal, has enrolled in and completed a large number of courses in the VET sector, has continuously worked in Australia, has acquired an impressive set of educational qualifications, has gained considerable experience working in fields associated with his formal study and has gained formal qualifications in the field of hospitality. The applicant provided copies of references from past employers in the hospitality industry. The Tribunal finds the applicant is trained, skilled, qualified and sufficiently experienced to work either as a cook/chef in Nepal or Australia. In addition the applicant has had serious formal training to business and management concepts.

32. The applicant in his application for a student visa advised the Department “we have plenty of opportunity in the hospitality industry. Not really necessary to open a restaurant to survive. There are many job opportunities in Pokhara for skilled people in tourism and hospitality. My Australian qualifications in hospitality industry definitely will get top priority”. The applicant has now concluded his studies in Commercial Cookery. He has concluded his studies in Business and Management. He has the option of working as a cook/chef or as a hospitality manager. To date he has not given purpose to his statement. He has simply advised he is willing to study a bachelor degree.

33. A citizen of a foreign country may only reside in Australia on a temporary or permanent basis whilst holding the appropriate lawful authority. This means a visa. The applicant has many avenues to seek permanent residency if that is his purpose. An applicant for a student visa must be both a genuine temporary entrant and a genuine student.

34. There is no significant relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, the applicant’s circumstances in the home country relative to others in that country.

35. The above factors cumulatively indicate the applicant is not a genuine student. Rather, the applicant appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and the applicant does not genuinely intend to stay in Australia temporarily. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and 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).

    Conclusion on cl.500.212

36. The Tribunal is of the view the applicant is using the student via program to circumvent the intentions of the migration program and the student visa is being used to maintain ongoing residence.

37. 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 applicants Kalpana NEUPAME BANJARA, Evelyn NEUPANE and Merrick NEUPANE

38. As the primary applicant was found not to meet cl.500.512 the three above named dependant applicants do not meet cl.500.311 as they are not the members of the family unit of a person who holds a student visa.

    DECISION

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

    Mark Bishop
    Member