PRASAI (Migration)

[2018] AATA 3257

PRASAI (Migration) [2018] AATA 3257 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bikram PRASAI

CASE NUMBER:  1705444

Home Affairs REFERENCE(S):                BCC2017/273832

MEMBER:David Barker

DATE:9 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2018 at 5:23pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – significant gaps in studies – ceased study – limited offshore period – relevance of course study – details of proposed business venture – economic incentive – stability of applicant’s employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 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 3 March 2017 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 for the visa on 20 January 2017. 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.

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 genuine temporary entrant criteria were not met.

4. The applicants appeared before the Tribunal on 11 May 2018 to give evidence and present arguments.

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

   Background

6. The applicant is a national of Nepal and is 29 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant arrived in Australia in October 2008 on a subclass 572 student visa. The delegate noted the applicant was subsequently granted a subclass 573, higher education sector student visa and in 2015 completed a Master of Accounting degree. The delegate expressed concern the applicant did not provide convincing reasons as to why further study, at a lower academic level, in a Diploma of Leadership and Management was necessary so that he could seek employment in his home country.  The delegate was also concerned the applicant could not demonstrate he had investigated the option of undertaking a similar Leadership and Management course in his home country.  Further to this, the delegate considered the applicant’s stable employment, at Summit Care Waverley, provided him with an economic incentive to remain in Australia and that the applicant had not provided convincing evidence as to having sufficient economic ties to his home country, which would provide him with an incentive to return to there. The delegate noted the applicant had successfully applied for a subclass 485 graduate work stream visa in 2015, to work as an Internal Auditor and that since his arrival in Australia in October 2008, the applicant had only been offshore for 54 days.

8. On 26 March 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 11 May 2018. That invitation among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

9. On 4 May 2018 , the Tribunal received documents from the applicant including:

   ·    evidence of  his current enrolment in a Diploma of Leadership and Management, due to commence on 14 May 2018 and finish on 7 June 2019;

   ·    a written statement.

10. The  written statement provided by the applicant stated:

    Statement on GTE and a genuine applicant for entry and stay

    My name is [the applicant] and I completed my master degree in accounting from kings own's institute, Sydney, a school with a reputation for excellence in terms of accounting programs. Although the rigorous academic environment presented certain challenges. I achieved a great deal and built a strong foundation of knowledge and experience. During my time at KOI, I developed my accounting skills and learned to communicate with others effectively. While I was studying my degree at KOI, I have grown especially interested in the subject of management, and I hope to continue my education in the Australian in this area. My time studying in the Australia has thus far exceeded my expectations. Every day I am here, I am inspired and motivated by the demanding and invigorating academic environment, and I looking forward to pursing a diploma in leadership and management, which will fetch me an extra mile for my future business plan.

    I was inspired to pursue a career in management from a young age, witnessing the business activities of my mother. She is an entrepreneur in the retail industry who is very business minded and dedicated to her work. As a child, I began to absorb many ideas and concepts related to business and management. After school, I often read books and periodicals such as business week and Forbes, and it was clear even at that young age that I would work in business in the future. My decision to pursue accounting degree is due to the fact that I recognize that my mother is limited by her qualifications she only earned a high school degree, relaying on her own diligence and perseverance to succeed. I hope to be able assist her and her company in the near future, and the professional management skills I learn in your institution will allow me to achieve this goal.

    During two years of my course, I had a positive attitude and developed good relationships with both classmates and teachers. Perhaps most importantly, during my time in college I cultivated the patience necessary to deal with people in need. My qualification has provided me with valuable knowledge and experience that will be of great use in my future management related work, where such communication skills are vital to success.

    In my view, acquiring knowledge of management will not only be extremely useful, but also personally rewarding and enjoyable. It is a fascinating area to study and one that I will certainly be able to apply to my future work. I am well prepared to face the challenge of studying leadership and management, and I have the determination to realize my goals and complete my studies successfully. Equipped with the specialist knowledge I will gain from this course, as well as the cross culture understanding that living in the Australia provides me, I expect to be able to progress smoothly into a career in the management field when I graduate. As for my future plans, I hope to acquire the expertise in management that will enable me to run my future business as professionally. I hope to develop the language skills, leadership and organizational abilities, culture understanding and professional expertise that will make me an effective and successful businessperson.

    Finally, I hope that in the near future, with the guidance of the experienced and learned teachers at Academies Australasia College, I will have thoroughly cultivated my independent
    thinking and research capabilities. I eventually plan to work as a professional manager of my own business in a financial firm, and I am convinced that by studying alongside the dedicated professionals and students in Australia, I will be able to engage in enlightening research and acquire a more profound academic foundation.

    Firstly, My student visa officer mentioned that I don't have a proper knowledge about the subject I am going to undertake that I strongly deny as I have a degree in exactly relevant course. And I have experienced how important it is to have a leadership quality and skill for future career objective that I aimed for, this Diploma of Leadership Management will help to build and develop the language skills, leadership and organizational abilities, culture understanding and professional expertise that will make me an effective and successful businessperson. If I wanted, I could have chosen any other subject, but I want to indeed complete Diploma of Leadership Management to gain depth of skills and knowledge and to be expert on this field.

    Lastly, after my visa refusal I went through a lot of stress and depression and stayed at home most of the time without taking and doing anything. As only being a son of my parents I was afraid to tell everything to my parents but my housemates told her my situation. It was very difficult moment during that period. But recently if given a chance I will complete my enrolled course for Diploma of Leadership and Management course since I had many missed opportunity under the management level at my job but to lack of leadership I missed such great opportunities.

    Furthermore, it will be much appreciated and grateful if DIBP could reinstate my student visa and allow me to continue my studies and letting me begin journey.

    The hearing

11. The Tribunal raised with the applicant that the matter before it is whether he meets the requirements of cl.500.212(a)It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

12. The applicant told the Tribunal that he has recently enrolled in a Diploma of Leadership and Management course and will attend the orientation day for this course in the week following the hearing. As to why he considers it important he undertake this course, the applicant said it was because his Australian employers had offered him opportunities in his workplace that he could not take up because of his lack of management skills.  He said he continues to work at the Summit Care aged care facility in Waverly, NSW.  He said has worked in this job since 2009 and that he is employed as a general service officer, assisting with food preparation in the kitchen and also helping residents with their meals.  He said he has a net weekly income of $550 from this employment, but denied the stability of his employment in Australia since 2009, when compared to his likely income in Nepal, provided him with an incentive to maintain his residency in Australia.

13. The applicant gave evidence his mother runs a small grocery business in Nepal.  He said she does not employ any staff to assist her and that his intention is to return to Nepal after he has completed his current studies to assist her run this business.  As to why, given he has a Bachelor and Master’s degrees in Accounting, he needs a further qualification in Leadership and Management to help his mother run what appears to be a small family business with no employees, the applicant  explained that his father died when he was four years old.  He said he has two sisters who are married and do not live at home with their mother.  The applicant said he was in the past depressed and could not do anything and that when the person he shares his accommodation with told his mother, she cried and begged him to come back to Nepal to assist her in the business.

14. The applicant told the Tribunal his mother has asked him to come home on multiple occasions and that she becomes distressed during these conversations.  He said he tells his mother he needs to finish the current course in which he has enrolled, so that he can complete something.  The Tribunal requested clarification of this evidence, as it would appear inconsistent with the applicant’s attainment of a Bachelor of Accounting and Master of Accounting whilst he has been in Australia since 2008. The applicant confirmed he has those qualifications and said he has been in Australia since 2008 and has not returned to Nepal since 2010 because he needed to do a professional year after finishing his accounting degree and then, he did not leave the country after his application for a regional work visa was refused.

15. The applicant reiterated that he wants to complete the Leadership and Management course before he returns to Nepal, so that he can learns skills that will assist him help himself and other people. The applicant told the Tribunal that he is now nearly 30 years of age and is unmarried.  He said his mother has found a potential wife for him that he has yet to meet.  He said he has no military service commitments and no concerns as to the political situation or civil unrest in his home country.

    Particulars of information put to the applicant pursuant to s.359AA of the Act

16. The Tribunal put particulars of information, from a recent check of the Provider Registration and International Student Management System (PRISMS) to the applicant, pursuant to s.359AA of the Act, after first explaining to him this information would, subject to his comment or response, provide the reason, or part of the reason for affirming the decision under review. The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request.

17. The  particulars of the information put to the applicant were that:

    ·     he completed a Master of Accounting in March 2015;

    ·     he completed a General English course in June 2015;

    ·     at the time he applied for a subclass 500 student visa in January 2017, he had enrolled in a Diploma of Leadership and Management  which was to run from  January 2017 to November 2017, however his enrolment was cancelled in May 2017 because he notified the education provider he had ceased study;

    ·     he has now very recently enrolled in another Diploma of Leadership and Management course, which is yet to commence and which would extend his stay in Australia until June 2019;

    ·    There is no indication he has completed any courses since June 2015;

    ·    There is also no indication he has made any trips away from Australia since 2011, which results in his having only being offshore for 54 days since his arrival in Australia in 2008, which results him having being onshore for 3,433 days since he came to Australia on his initial student visa.

18. The Tribunal explained to the applicant that this information was relevant because it appears to indicate there are very significant gaps in his studies, including those caused by his ceasing study in the course that was the rationale for the current student visa he applied for in January 2017. The Tribunal explained this information is also relevant because the very limited time he has spent away from Australia since 2008 gives rise to concern that he has not maintained close ties to his home country and that he has developed strong ties to Australia, which would provide him with an incentive to try and maintain his residency in Australia.

19. The Tribunal told the applicant that if it relies on this information it may find he is not a genuine student and that he is using student visas to maintain his residency in Australia and that if the Tribunal finds he does not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the application for a student visa.

20. The applicant told the Tribunal he did not want further time to consider his response and then made the following comments in response to the information put to him pursuant to s.359AA:

    ·he did finish a professional year associated with the accounting degree and he did this in the 2015 to 2016 period;

    ·when his visa application was refused he went through depression, stress and crying; 

    ·when he told his mother  about his situation, she cried and asked him to return to Nepal;

    ·he had promised his mother he would return to Nepal, but his employers then told him that they will sponsor him to remain in Australia on a work visa, as they have done for other staff;

    ·he loves the multicultural nature of Australia, but he does not intend to remain in Australia permanently and just wants to finish a Diploma of Leadership and Management course before he goes back to Nepal;

    ·friends have told him to go to Canberra to apply for a visa, but he has not done this because he wants to study in the Diploma of Leadership and Management course, so that he can then return to Nepal and make his mother proud of him. 

    ·his mother has told him to finish the course and then return to Nepal, marry and have children, so that she can have grandchildren around her.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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 intends genuinely to stay in Australia temporarily.

22. 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?

23. 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.

24. 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.

25. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

26. The Tribunal has concern about the gaps in the applicant’s study history in Australia and his failure to maintain studies in the Diploma of Leadership and Management course, which was the rationale for his application for the subclass 500 Student visa in January 2017.  The Tribunal accepts the applicant was upset after the Department’s decision to refuse his application for the visa, but is not persuaded this is a convincing reason for ceasing study in this course.  The Tribunal noted with concern that the applicant appears to have enrolled in a further Diploma of Leadership and Management course only after he received the hearing invitation from the Tribunal. The Tribunal considers this to give rise to the concern the applicant is not a genuine student and that he is rather using the student visa program to maintain his residency in Australia.

1. The Tribunal is not satisfied the applicant has explained why the Diploma of Leadership and Management course is necessary for his future employment, or involvement in his family business, in his home country.  His evidence in relation to this issue contains significant inconsistencies.  On one hand, he indicates he will return to Nepal and assist his mother with the small grocery business she operates.  This is a sole operator business with no employees.  On the other hand, the applicant has submitted that he intends to open a financial firm in his home country.  In relation to the family grocery business, it is not clear why the applicant’s current accounting qualifications have not provided him with adequate skills to assist his mother in this business, or why leadership and management skills are necessary for a business which has no employees.  As to his claim he will establish a financial firm, he has provided no specific business plan or other details as to this proposed business venture and the Tribunal is not persuaded he has a genuine plan to open any such business.

2. The applicant’s general migration history gives rise to concern he is motivated to maintain his residency in Australia for reasons other than study. He has maintained steady employment with the same employer since 2009. He gave evidence he is currently negotiating with his employer in relation to their sponsoring him for a work visa allowing him to remain in Australia. He has previously held a subclass 485 graduate work stream visa and he gave evidence he subsequently applied, without success for a regional skilled work visa which would have provided him with another pathway to maintain his residency in Australia. In his response to the information put to him pursuant to s.359AA, the applicant claimed his friends had encouraged him to apply for a visa from Canberra, he did not elaborate on what sort of visa that would have been. The tribunal has placed no weight on this claim. The Tribunal considers the stability of the applicant’s employment in Australia, when compared to his likely economic circumstances in his home country, provides him with an economic incentive to maintain his residency in Australia. The Tribunal has also placed weight on the consistent themes in the applicant’s evidence as to the importance of his job with his current employer in Australia.

3. The Tribunal accepts the applicant has family ties in Nepal, which provide him some incentive to return there. However, the Tribunal finds the very limited time he has spent in Nepal since 2008 is not indicative of his having maintained strong ties to his home country. Further to this, the Tribunal has placed weight on the applicant’s evidence that despite his mother’s multiple requests for him to return to Nepal, since his visa application was refused in March 2017, he has not to date done so and is intending to extend his stay in Australia until at least June 2019. The Tribunal has placed more weight on this unprompted oral evidence from the applicant, over the somewhat contradictory claim in part of his response to the information put to him pursuant to s.359AA, where he claimed his mother has told him not to return to Nepal until he has completed the Diploma of Leadership and Management program.

4. The Tribunal also accepts the applicant has no military service commitments in Nepal, which may provide him with an incentive to not return there, nor concerns about the either political situation or civil unrest in his home country.  However, notwithstanding these considerations, in the particular circumstances of this case, the other concerns held by the Tribunal outweigh these findings.

5. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied, having regard to the evidence advanced and considered cumulatively above, that the applicant intends genuinely to stay in Australia temporarily as a student. Accordingly, the applicant does not meet cl.500.212(a).

6. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay and does not meet cl.500.212.

7. 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

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

   David Barker
   Member