Paudel (Migration)

[2018] AATA 600

Paudel (Migration) [2018] AATA 600 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sagar Paudel

CASE NUMBER:  1706172

DIBP REFERENCE(S):  BCC2016/1193336

MEMBER:M. Edgoose

DATE:8 March 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 08 March 2018 at 10:34am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether applicant genuinely intends to stay in Australia temporarily – Financial incentive to remain in Australia – Limited academic progress – Limited value of proposed study to future plans

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(a), Schedule 8, Condition 8202

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 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 to the Department of Immigration for the visa on 18 March 2016. The delegate decided to refuse to grant the visa on 16 March 2017. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. On 16 March 2018 the delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 19 February 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

   Genuine Temporary Entrant

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

8. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. At the hearing Tribunal had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Background

11. The applicant is from Nepal and applied for the visa on 18 March 2016 and the delegate refused to grant the visa on 16 March 2017 on the basis that the ‘Genuine Temporary Entrant’ criterion, or GTE criterion, which applies to every student visa, was not met.

12. The applicant first arrived in Australia on 24 March 2012 on a student visa (subclass 572).

13. The GTE criterion requires that the applicant is a genuine student because the applicant intends to stay in Australia temporarily when assessed with consideration of the factors outlined in Ministerial Direction 53.

    Circumstances in home country

14. Before coming to Australia, the applicant had studied a humanities course in higher education and gained experience working in his father’s family restaurant. The applicant told the Tribunal that higher education in Nepal is known in Australia as years 10 to 12.

15. The applicant gave evidence that his parents and one sister live in Nepal.  The applicant has not returned to Nepal since coming to Australia on 24 March 2012. The Tribunal gives weight to the applicant’s ties back in Nepal.

16. The applicant told the Tribunal that he been able to manage personal relations overseas while living in Australia.

    Circumstances in Australia, and immigration and study in Australia

17. The applicant stated to the Tribunal that his second sister lives in Tasmania and that he has an uncle who lives in Rockhampton, Queensland and supports the applicant financially.

18. Adopting the procedure in section of the Act 359AA, the Tribunal read out the following statement to the applicant.

    Sagar Paudel, I am going to share with you some information from a Departmental database.

    It is called PRISMS (the Provider Registration and International Students Management System) and it tracks, based on information reported by Australian education providers, the enrolment and education achievements of international students in Australia.  I have a PRISMS report dated 6 February 2018.

    The information from PRISMS is:

    1.        PRISMS show you have enrolled in 13 courses during the almost 6 years you have been in Australia.

    2.         PRISMS report also shows that many of the courses you have enrolled in have the same course title or name and hence are repetitive or overlap. 

    3.        PRISMS show 5 of the courses you enrolled in are recorded as being cancelled for reasons of non-commencement of studies 1, change to a course in the same sector 1,change to COE 2,unsatisfactory course progress 1.

    4.         PRISMS show you finished 7 courses you enrolled in. You have supplied a Statement of Attainment for Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management. You have not provided Certificates of Graduation, Certificates of Attainment or course transcripts from the remaining courses.

    5.        PRISMS show you do currently hold a valid COE for enrolment in an approved course.

    This information is relevant because it shows that you have not started, have cancelled or not completed all courses you have enrolled in since October 2017. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you being a genuine student staying in Australia temporarily.

    If the Tribunal relies on this information in making its decision, it may lead me to believe that you are not a genuine student staying in Australia temporarily, and that you do not meet cl.572.223. If the Tribunal so finds, this information would be a reason, or part of the reason, for me to affirm the decision of the Department in your case and refuse your application for a student visa.

    I invite you to comment on or respond to that information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request and will grant you a reasonable amount of time to consider the information I have given to you and to consider your response to that information.

19. The Tribunal enquired if the applicant understood the information put to him in accordance with s.359AA. The applicant confirmed he understood. The applicant did not seek an adjournment and elected to respond in the hearing.

20. The applicant said that he had previously had poor study habits and this had been the reason for his lack of continuous academic progress and in 2016 the applicant realised his passion to study in the areas of commercial cookery and hospitality management.

21. The Tribunal notes that in the delegate’s decision (DIBP Folio 56-63) the applicant “appears to have completed (a) Diploma of Software Development”. The applicant acknowledged that he had completed this course but did not submit evidence of this to the Tribunal.

22. The applicant submitted to the Tribunal certificates for the following:

    a.Certificate III in Commercial Cookery - course completed on 12 February 2017 (AAT Folio 26);

    b.Certificate IV in Commercial Cookery - course completed on 7 May 2017 (AAT Folio 30);

    c.Diploma of Hospitality Management - course completed on 22 October 2017 (AAT Folio 28).

23. The applicant’s GTE statement dated 2 June 2016 to the Department (DIBP Folio 29-30) made no reference to his future plans back in Nepal and that he wished to continue studying hospitality in Australia.

24. The applicant’s statement to the Tribunal (AAT Folio 38) provided greater detail about his current and future study plans in Australia and a brief comment about opening a restaurant with his uncle back in Nepal.   

25. The applicant advised the Tribunal that he was currently studying an Advanced Diploma of Hospitality Management and that the course was due to finish on 8 April 2018.

26. The applicant submitted to the Tribunal an International Student Offer and Acceptance of Agreement for a Bachelor of Tourism and Hospitality at Academies Australasia Polytechnic to start on the 16 July 2018 and finish on 10 July 2020. (AAT Folio 20 to 23)

27. The Tribunal asked the applicant what he planned to study between 8 April 2018 and 16 July 2018 a total of approximately 3 and half months. The applicant responded “I might do an IELTS course”. The Tribunal is concerned that the applicant has no confirmed plan of study for this period of time.

28. The applicant told the Tribunal that the reason for his lack of academic progress and poor study habits had been as a result of the Nepal earthquake that occurred on 25 April 2015. The Tribunal asked the applicant how the earthquake in 2015 had affected his family back in Nepal. The applicant informed the Tribunal that some of his family and friends had had houses damaged and that several relatives were lost due to the earthquake. The Tribunal acknowledges the tragedy that occurred in Nepal and the effect it had on the applicant’s family and friends. The Tribunal observes that after the natural disaster the applicant did not return to Nepal to visit his immediate family as his parents wished for him to remain focused on his studies in Australia. Notwithstanding this, there is limited evidence of study in 2015 and early 2016. The Tribunal observes that the applicant commenced his Certificate III in Commercial Cookery (AAT Folio 26) on 25 April 2016 (see para 22a above).

29. The Tribunal notes that the applicant attended a counselling program on a fortnightly basis (DIBP Folio 13) over a 10 month period from 5 May 2015 until 29 March 2016. The counselling service was provided by Health Issue Pty Ltd Drink Driving Program. No additional medical evidence was provided to the Tribunal or the Department that the applicant was unable to study during this period of counselling. The Tribunal gives weight to the applicant’s lack of academic progress and poor study habits during this period.

30. The applicant said to the Tribunal that he had only recently found his passion to study in the area of hospitality and tourism. The applicant told the Tribunal he now believes in himself and has more confidence to study. In all the circumstances the Tribunal is concerned that the applicant’s recent academic success is motivated by a desire to gain a migration outcome and is not the behaviour of a genuine temporary entrant. 

31. The Tribunal asked the applicant why he had not completed these studies back in Nepal and the applicant responded by saying that Australia is the best destination for studies and the Australian degree is world recognised.

32. The applicant told the Tribunal that he currently lives with cousins in Heidelberg, does not have a partner and works part-time at Café Matto in Heidelberg. The applicant stated to the Tribunal he works between 18 to 19 hours a week and earns $18 per hour. Prior to his current part-time job the applicant was working primarily on weekends in the regional town of Bendigo for approximately $30 per hour.

33. The applicant informed the Tribunal that he is financially supported by his uncle who lives in Rockhampton, Queensland. His uncle pays the majority of the living expenses and relevant bills.

34. The Tribunal considers that the economic disparity between Nepal and Australia is a real incentive for the applicant to remain in Australia. The applicant told the Tribunal that Nepal is a developing country and that life in Australia is better. On his evidence the Tribunal notes that the applicant is likely to earn as little as $3000 per annum back in Nepal, compared to earning $18 per hour at his current place of employment in Australia.  

    Applicant’s future plans

35. The applicant told the Tribunal that his future plans are to return to Nepal and to open up his own international hotel and tourism business with his parents. The applicant hopes to be a successful businessman in the future and utilise the skills he has gained from his studies in Australia. The Tribunal notes that the applicant did not provide evidence of where the business would be located, the cost of the purchase of the land or existing business, the number of staff required and how the required capital would be raised or accessed in the future.

36. The applicant was unable to elaborate further to the Tribunal about his future plans back in Nepal. The Tribunal gives little weight to the applicants future plans.

    Value of proposed study to applicant’s future plan

37. The applicant’s latest proposal is to study a Bachelor of Hospitality and Tourism through Academies Australasia Polytechnic with tuition fees totalling AU$30,000. The Tribunal notes that (AAT Folio 22) the initial fees for this course are not due until 9 July 2018. The Tribunal observes that the applicant has already completed a Diploma of Hospitality Management (AAT Folio 28) and Certificate III and IV in Commercial Cookery (AAT Folios 26 and 30). The applicant is currently studying his Advanced Diploma of Hospitality Management which is due to be completed by 8 April 2018 and is sufficient for the applicants future plans. The Tribunal considers that the latest study proposal adds little incremental value to qualifications already achieved, in particular the hospitality management skills already acquired. The Tribunal considers that the Bachelor of Hospitality and Tourism holds limited additional value to the applicant’s future plans.

38. The applicant’s lack of academic progress between September 2012 and February 2017 is of concern to the Tribunal. The Tribunal considers that a genuine applicant for entry and stay as a student is a person who genuinely intends to be a student in Australia temporarily.  The primary occupation of a student is to study.  The Tribunal considers that the onus is on each student to select a course in a subject and at a level where enrolment can be maintained and satisfactory course progress is achievable. 

39. Condition 8202 requires that an applicant remain enrolled in a registered course and that the applicant’s education provider has not certified that the applicant has not achieved satisfactory course progress or attendance.  The Tribunal considers that in order to intend to comply with Condition 8202 a student should remain enrolled and intend to achieve satisfactory course attendance and progress such that certification by the education provider is not warranted.

40. The applicant claims that his intention has always been to stay in Australia temporarily and that intention is still held. If that is and was so, the Tribunal considers the applicant would have departed Australia to reunite with his family back in Nepal and to set in motion his claimed future plan to open his own international hotel and tourism business with his parents.

41. The fact that the applicant instead proposes significant further study indicates to the Tribunal that the applicant’s intention is not to cease his temporary stay in Australia. It is the Tribunal’s view that the applicant’s main purpose of being granted a further student visa is to maintain ongoing residence in Australia.

    Conclusions

42. The Tribunal considers that the applicant’s non completion of courses and a lack of academic progress between September 2012 and February 2017 is not the behaviour of a genuine student or a genuine temporary entrant.

43. The Tribunal considers that the applicant has little incentive to return to Nepal having made significant ties and gaining financial support through his uncle within Australia.

44. The Tribunal does not consider the applicant’s personal connections overseas are a significant incentive for the applicant to cease residence in Australia.

45. The Tribunal has significant concern of the value of the study now proposed does not lie outside Australia, but in the grant of further student visas for the purposes of continued residence in Australia. The Tribunal has little confidence that the study now proposed will be completed and therefore has little confidence that the applicant will depart Australia.

46. The applicant’s lack of overall academic progress during the almost 6 years he has been in Australia is a significant concern to the Tribunal. The first sign of academic success was in 2017. This leaves the Tribunal to find that the applicant is not committed to departing Australia and instead intends to prolong an already substantial stay in Australia indefinitely.

47. There is no significant relevant evidence regarding the following factors indicated by Direction 53 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.

48. On the basis of the above, and having considered the applicant’s circumstances, immigration history, the considerations indicated by Direction 53, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily for the purposes of study. Accordingly, the applicant does not meet cl.572.223(1)(a).

49. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

   M. Edgoose
   Member