Neupane (Migration)

[2020] AATA 3053

Neupane (Migration) [2020] AATA 3053 (19 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabesh Neupane

CASE NUMBER:  1808605

HOME AFFAIRS REFERENCE(S):          BCC2017/2464821

MEMBER:Adrienne Millbank

DATE:19 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 19 May 2020 at 4:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – first student visa cancelled – three year exclusion period – remained in Australia as secondary applicant – member of the family unit – time of application criterion – practical and emotional support to primary applicant – compelling circumstances – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 116
Migration Regulations 1994, Schedule 2 cls 500.311, 500.312, 500.317; Schedule 4 Public Interest Criterion 4013

CASES

Bains v Minister for Immigration and Citizenship [2012] FCA 649
Berenguel v Minster for Immigration and Citizenship [2010] HCA 8

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 9 March 2018 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 was born in Nepal in 1994 and is 25 years old at the time of decision. He first arrived in Australia in October 2013 on a Student (Subclass 573) visa, enrolled in a Diploma of Hotel Management and a Bachelor of Business. He has not departed Australia since his arrival. On 11 October 2016 he was granted a Student (Subclass 500) visa. That visa was cancelled on 1 August 2017 under s.116(1)(b) of the Act for non-compliance with Condition 8202 (continues studying).

3. The applicant applied for this visa on 11 July 2017 as a member of the family unit to join his declared de facto partner, the holder of a Student (Subclass 500) visa. The visa holder and the applicant registered their relationship with the Queensland Registry of Births, Marriages and Deaths on 9 May 2017.

4. The visa holder was born in Nepal in 1998 and is 22 years old at the time of decision. She first arrived on her Student (Subclass 500) visa on 1 September 2016, enrolled to study English and a Bachelor of Health Science. That Student (Subclass 500) visa is due to expire on 26 August 2020.

5. 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.

6. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.317 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy Public Interest Criterion (PIC) 4013.

7. The delegate’s decision records that the applicant’s own student visa was cancelled on 1 August 2017, as noted, under s.116(1)(b) for non-compliance with Condition 8202 (continues studying). The applicant was not enrolled in a registered course of study from 3 November 2016 until 24 July 2017. The delegate noted that because the applicant was affected by the risk factor of PIC 4013, a three year exclusion period applies from the date his visa was cancelled.  

8. The delegate found there was strong evidence to suggest that the applicant had intentionally abused or sought to circumvent Australia’s immigration laws, and was not satisfied there were grounds to justify the waiver of PIC 4013 and the grant of the visa.

9. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

10. The applicant appeared before the Tribunal on 8 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa holder.

11. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold it by telephone. The Tribunal determined it was reasonable to hold the 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. The applicant did not raise any concerns in relation to holding a telephone hearing, and the Tribunal is satisfied that he was given a fair opportunity to give evidence and present arguments.

12. The applicant was assisted in relation to the review by his registered migration agent, who attended the hearing.

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 meets cl.500.317.

15. The applicant’s representative submitted, in a written submission dated 27 April 2020 and at hearing, that cl.500.317 is a secondary criterion, and, as such, only applies at the time of application. He submitted that at the time of application the applicant still held a substantive visa, was not affected by the risk factor, and satisfied cl.500.317. The representative referred to the note in the Subclass 500 – Student legislation at 500.2 under the heading ‘Primary Criteria’ which states:

    The primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicant 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.

16. The representative argued that it follows from the note that while the primary criteria has to be satisfied by the primary applicant, the applicant as the secondary applicant needs only to satisfy the secondary criteria, being the other member of the family unit who is the applicant for a visa of this subclass: Subclass 500. The representative submitted that the criteria contained in cls.500.311 to 500.318 are only applicable to the secondary applicant, and materially relevant only at the time of application.

17. The representative acknowledged that he made the same submission to the Department, and that it was dismissed by the delegate. The Tribunal notes that the delegate in the decision record stated:

    The Departmental position is that all Schedule 2 primary criteria for the Subclass 500 visa are time of decision criteria. This is reflected in the note to the primary criteria that provides ‘All criteria must be satisfied at the time a decision is made on the application’.

    At the time of decision, the client had had a visa cancellation which means they are affected by the risk in PIC 4013(2) and can only satisfy PIC 4013 if a delegate finds that PIC4013(1) is satisfied.

18. The representative stated at hearing that his interpretation of the Student (Subclass 500) visa requirements relies on emphasis and interpretation that the legislation allows for, particularly of the words ‘only’ and ‘the’ in the note at cl.500.2.

19. The Tribunal put to the representative that according to his submission, if the applicant had come to the hearing and stated that he broke up with the visa holder a year ago, but was in a relationship with her at the time of application, it would be reasonable for the Tribunal to find that he meets cl.500.311, which requires that he is a member of the family unit of the visa holder. The Tribunal put to the representative that this defies common sense, and that the clear meaning of the note is that all criteria, including the secondary criteria, must be satisfied at the time a decision is made on the application. The representative stated that in this case the issue of whether the applicant meets cl.500.311 does not arise as the applicant remains a member of the family unit of the visa holder.

20. The Tribunal asked the representative whether he was submitting that, in a hypothetical case where a secondary applicant advises the Tribunal he is no longer a member of the family unit of the primary visa holder, and has no intention of remaining temporarily in the country, although he was and did at the time of application, it would be reasonable for the Tribunal to find that he meets cl.500.311 and cl.500.312, which require a secondary applicant to be a member of the family unit of the primary visa holder, and to genuinely intend to stay temporarily in Australia. The representative acknowledged that he was. He acknowledged that this might appear to defy common sense, but submitted that the legislation as it is drafted gives rise to his interpretation, and his interpretation therefore merited consideration. He suggested that it would be open to the Tribunal, in its hypothetical case, to draw adverse conclusions about the secondary applicant’s intentions at the time of application from his circumstances and behaviour at the time of decision.

21. The representative referred to case law: Bains v Minister for Immigration and Citizenship [2012] FCA 649 (21June 2012), and the High Court case of Berenguel v Minster for Immigration and Citizenship [2010] HCA 8 (5 March 2010). The representative submitted that the cases:

    clearly showcase that in circumstances where legislation is ambiguous or otherwise unclear, interpretation of the ambiguous clause should favour a construction which is just, reasonable and takes a purposive approach to the legislation. Additionally, or alternatively the interpretation should avoid a construction that is ‘unfair or absurd’ in its meaning, and if it does, the benefit of doubt should be given; in the matter on hand, to the applicant.

22. The Tribunal has considered the representative’s submission and the cases cited. The Tribunal does not accept that the Subclass 500 – Student legislation is ambiguous or otherwise unclear. The Tribunal prefers the Departmental position that all Schedule 2 criteria for the Subclass 500 visa are time of decision criteria, and finds the clear meaning of the note at cl.500.2 is that all criteria must be satisfied at the time a decision is made on the application, in this case, the application by the applicant as a secondary applicant.

23. The applicant’s Student visa was cancelled under s.116(1)(b) on 1 August 2017. Accordingly, the Tribunal finds that the applicant does not satisfy PIC 4013(1)(a).

24. Regarding compelling or compassionate circumstances, the representative submitted that:

    [The visa holder], the applicant’s partner, is determined to become a Nurse in spite of mental, physical and financial difficulties she is continuously facing. She wishes to dedicate her life to serving the people of Regional and Remote areas of Australia.

25. The representative submitted that the visa holder would not be able to pursue her studies if the applicant departs Australia, because of the practical and emotional support he provides to her.

26. The Tribunal notes that the applicant, when asked at hearing what professional qualifications the visa holder has obtained during her three and three-quarter years as a student in Australia, referred to a copy of a certificate dated February 2018 provided to the Tribunal certifying that the visa holder had satisfactorily completed course requirements for the non-award Tertiary Preparation Program (Health Sciences). The Tribunal accepts that the visa holder encountered difficulties including ill-health, bereavement over the death of her grandmother, and mental stress which prevented her from completing any units of her Bachelor of Health Science course. The applicant confirmed that the visa holder’s enrolment in this course was cancelled.

27. The Tribunal accepts that the visa holder has enrolled in a Certificate IV in Ageing Support from 9 March 2020 to 7 March 2021; and a Bachelor of Nursing from 12 February 2018 to 8 February 2021 and accepts her claim at hearing that she has attended coursework for units in these courses for which she is awaiting assessment.

28. The Tribunal notes however that the visa holder has obtained no professional qualifications, and has completed no units towards any professional qualification, in her three and three-quarter years in Australia. The Tribunal accepts that the visa holder might genuinely intend to work in Australia as a nurse in regional and remote areas. The Tribunal however considers any contribution the visa holder might make to the nation as a nurse a hypothetical proposition, and does not find her intention a compelling circumstance that affects the interests of Australia. The Tribunal accepts that the visa holder’s desire to qualify and work as a nurse is sincere, and a compassionate consideration. However, the visa holder is not an Australian citizen or permanent resident, or an eligible citizen of New Zealand.

29. The Tribunal does not find in this case there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

30. Based on the above findings the applicant does not satisfy PIC 4013 and therefore does not satisfy cl.500.317(1).

31. 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

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

    Adrienne Millbank
    Member