Panta (Migration)

[2022] AATA 4957

Panta (Migration) [2022] AATA 4957 (28 June 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Dhiroj Panta

REPRESENTATIVE:  Ms Hema Chemjong (MARN: 1796307)

CASE NUMBER:  2116796

HOME AFFAIRS REFERENCE(S):           BCC2020/310922

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 June 2022 at 12:04 pm (VIC time)

DATE OF WRITTEN RECORD:                26 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with a direction that the Applicant meets the criteria contained in clauses 500.211 and 500.212 of Schedule 2 of the Regulations.

Statement made on 26 July 2022 at 3:52pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – genuine temporary entrant – length of stay – immigration history – international travel restrictions – circumstances of the applicant – significant incentive to return home – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 November 2021 to refuse to grant the Visa Applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 28 June 2022 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

1. The time now is 11:56 am on the 28 June 2022. This is an application for review in case number 2116796 where the Applicant is Dhiroj Panta who is a citizen of Nepal. He seeks review of a decision made by a delegate of the Minister refusing to grant him a Subclass 500 Student Visa. He applied for this visa on 5 February 2020. It was refused by a delegate on 3 November 2021. It was refused because the delegate did not think that the Applicant was a genuine applicant in accordance with clause 500.212 of Schedule 2 of the Regulations.

1. The Tribunal convened a hearing to consider the merits of this review application on 28 June 2022. The Applicant participated by phone. The Applicant was assisted by his Representative, Ms Chemjong, who also participated by phone, and the Tribunal was assisted by an interpreter in the Nepali and English languages.

1. The issues for consideration and determination by the Tribunal today are firstly, whether the Applicant is currently enrolled in accordance with clause 500.211 and secondly, if he is, whether he is a genuine applicant in accordance with clause 500.212.

1. For the following reasons I have determined that the Applicant meets both of those criteria. In relation to clause 500.211, I find that the Applicant is currently enrolled in two courses. Firstly, a Diploma of Leadership and Management, CoE reference C8884862, that course is already underway starting in October of last year and due to finish on 2 April 2023, followed by an Advanced Diploma of Leadership and Management, C8885630, starting on 3 April 2023 and finishing on 31 March 2024. The Applicant confirmed that he was enrolled and undertaking those courses and I accept that evidence because I have found the Applicant to be a witness of truth. The Tribunal, therefore, finds that the Applicant meets the criteria contained in clause 500.211.

1. On the issue of whether or not the Applicant is a genuine applicant in accordance with clause 500.212, that clause requires me to be satisfied that the Applicant genuinely intends to stay in Australia as a student temporarily and because he intends to comply with the conditions of a Student Visa were one to be issued to him. I am satisfied of that criteria being met.

1. The Regulations require me to have regard to a range of circumstances erring upon those particular issues, including his immigration history, his circumstances both in Australia and in his home country of Nepal, his declared intentions, and any other relevant matter. And, of course, I do have to have regard to all of the factors referred to and set out in Direction Number 69. I have had regard to those factors.

1. The law requires me only to refer to those factors that are material to my decision now rather than go through every single one of them because there are well over 20 of them. I simply do not have the time to deal with that to discharge my function efficiently, so I will refer to only those which are material to my decision.

1. The first factor that I have regard to is the length of stay that the Applicant has remained in Australia and perhaps more broadly his immigration history. He has given evidence, which I accept, that he has come to Australia on a number of occasions, the first occasion being 2017, where he stayed for a relatively short period of time. He returned to Nepal and then he came back the following year in 2018 and he stayed for a period of about three months. He came to visit family; that is, he has family living here, and on each occasion he had returned to his home country because he has a wife and two children, one who is in their late teens and another one who is much younger.

1. On the last occasion that he came, again it was to visit, that was at the end of 2019. His intention was to stay only for a few months. Ultimately, however, after his arrival, and I accept that he had a change of intentions, he made a decision to stay and formally study General English. That is reflected in his PRISMS record and then ultimately that transformed into a more ambitious desire to study a Diploma of Leadership and Management and then the Advanced Diploma.

1. Factors, of course, would have impacted that decision are quite apart from the fact that he simply wanted to enhance his skills, there was also the COVID-19 pandemic that made international travel extremely difficult at the beginning of 2020. I have taken that into account. I have also accepted the Applicant’s evidence that he does indeed want to enhance his formal skills because I accept that he has, prior to undertaking this study in Australia, only obtained completion of high school before entering the workforce, so I do consider that his proposed courses of study, including courses which are conducted in an English-speaking western environment in Leadership and Management will be valuable to him especially having regard to his practical experience in Marketing. Again, he has given evidence about that and I accept it.

1. I have taken into account the circumstances of the Applicant here and overseas. He has not stayed here long enough for me to be concerned that he is attempting to use the visa program to maintain ongoing residence. Although I note that he appears to have some ties to the Australian community given that family members, including his mother, are currently residing here., but he also has a significant incentive to return home to his home country, being Nepal, because his wife and two children remain there and ultimately I do accept that he does have a genuine intention to stay here to study to put him in a better position when he returns to Nepal in terms of employment prospects.

1. So those are the material considerations that have led me to my conclusion. I should also obviously have mentioned that he has been studying although there have been course cancellations. It appears to me that those appear to be technical cancellations because of some internal administrative course change requirement. Removing those cancellations, it seems to me that the Applicant is doing exactly what he says he wanted to do, which is study.

1. So, in all the circumstances, I am satisfied that the Applicant is a genuine applicant and meets the criteria contained in clause 500.212. The time now is 12:04 pm on 28 June 2022. In case number 2116796, the Tribunal remits the application for a Subclass 500 Student Visa for reconsideration with the direction that the Applicant meets the criteria contained in clauses 500.211 and 500.212 of Schedule 2 of the Regulations.

DECISION

1. The Tribunal remits the decision under review with the direction that the Applicant meets the criteria contained in clauses 500.211 and 500.212 of Schedule 2 of the Regulations.

Dr Jason Harkess Member