Pujara (Migration)

[2021] AATA 3911

Pujara (Migration) [2021] AATA 3911 (28 June 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Dilip Pujara

CASE NUMBER:  1932009

DIBP REFERENCE(S):  BCC2019/4011127

MEMBER:  Robert Cumming

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 June 2021 at 6:17 pm (QLD time)

DATE OF WRITTEN RECORD:                29 July 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – reason for studying in Australia – unsatisfactory academic progress – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. At the hearing of this application for review on 28 June 2021 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. This is an application for review of a decision made by a delegate of the now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 22 October 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 13 August 2019. At the time of application, Class TU contained 2 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.

1. The delegate in this case refused to grant the visa on the basis 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 the applicant intended genuinely to stay in Australia temporarily.

1. The applicant appeared by telephone before the Tribunal on 28 June 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. However, the more practical reason for the hearing by telephone was that the Tribunal, as constituted, was sitting in Brisbane, and the applicant was resident in Sydney, New South Wales. As such, remote attendance would have been necessary anyway, as face-to-face hearings have largely been put on hold because of the pandemic. In any event, it was put to the applicant at hearing as to his acceptance of conducting the hearing by telephone and he accepted and agreed to that course of action. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

Genuine applicant for entry and stay as a student – cl 500.212

1. Clause 500.212 of the Regulations 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 stay in Australia temporarily?

1. 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, a copy of which was provided to the applicant in the course of the application process by the Tribunal and a further copy of which is attached to this decision, 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.

1. 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.

1. The Tribunal has had regard to all the information supplied to the Department of Home Affairs with the visa application, which is on the departmental file provided to this Tribunal, and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the duly completed Request for a Student Visa Information form (information form) received by the Tribunal on 23 March 2021, and the further supporting documents received by the Tribunal on the morning of the hearing on 28 June 2021.

1. The Tribunal notes that it has on its file certain information which was not provided by the applicant. These were printouts from the Provider Registration and International Student Management System (PRISMS), and the Departmental movement records. Accordingly, out of fairness and in accordance with s 359AA of the Act, the Tribunal arranged for copies of these printouts to be sent to the applicant prior to the hearing, and the applicant had them available at hearing and was given time to consider the material and comment upon it.

1. The applicant took the time to give an explanation of the concerns that were put to him by the Tribunal that may potentially be inferred from the information in the printouts. More will be said of this later in this decision, but it focused on the issue of whether the applicant had progressed satisfactorily academically and that he had not travelled home at any stage during his time in Australia, which may lead to the inference that the applicant was maintaining residence in Australia and was not a genuine applicant for entry and stay as a student.

1. Having taken the time to explain his situation and address the concerns put to him by the Tribunal, when the applicant was asked whether he required additional time to make any further submissions, the applicant indicated he did not. The applicant did not challenge the accuracy of the information contained in the printouts, although he did make an

   explanation about one Confirmation of Enrolment (CoE) which was issued prior to his arrival in Australia and with which the Tribunal is not concerned.

1. Based on all the information available to the Tribunal, most notably that material supplied by the applicant, including his oral evidence and submissions at hearing, the applicant’s circumstances may be summarised as follows.

(a)The applicant is a 25-year-old citizen of Nepal who arrived in Australia as the holder of a Subclass 573 Student visa on 18 November 2014.

(b)The applicant has links to his home country in the form of his parents and his younger sister. Some 2 years ago, the applicant’s father who is a radiographer at an MRI clinic, and his mother who undertakes home duties, decided to separate. The applicant does have a younger sister who has just only recently completed her schooling. The applicant says he maintains contact with his family, more regularly with his mother, on a weekly basis by phone and online means, and less frequently, perhaps once every one or two months, with his father. The applicant described his family as a middle class family.

(c)As to whether the applicant would suffer adverse economic consequences if he had to return to Nepal, the applicant did express some concerns in this regard. That is, the fact that if he had to return without qualifications, getting a job would be very difficult, or he would have to return to study, and qualifications obtained in Nepal usually do not result, he said, in very lucrative positions.

(d)The applicant indicated in the completed information form that he has no concerns in respect to military service commitments that he might have to render, if he returned home to Nepal, and that there are no issues of political and civil unrest in the area of Nepal where his family is resident. Obviously, the COVID-19 situation is of concern, but that is a concern worldwide.

(e)In Australia, the applicant has his wife who works in the aged care sector on a part-time basis, and also has recently completed her own studies in a Master of

Accounting. There is also a cousin of his wife and his family who live in Tamworth who the applicant and his wife phone on an irregular basis, and they do catch up for cultural festivals and around Christmas time. Apart from that, the applicant says he has no real contacts with whom he keeps in contact, although he does live in a share house with other students, and one of his greatest childhood friends is also living in Australia and he sees him from time to time. That friend is also a student here in Australia.

(f)The applicant has worked since he has been in Australia and he has given in the information form details of several employers over the years. He has worked as a waiter, as a cleaner for 2 separate organisations, and more recently he has worked at

mobile cafes and the like as a barista. He is currently continuing his work as a barista at Eve’s House of Manoush, working two days a week, earning between $750 and

$800 per fortnight for that employment.

(g)As noted, his wife works part-time in the aged care sector and her take home pay per fortnight is of the order of $2,000.00. So, translating that into annual earnings, that could be, on a best case scenario, of the order of $70,000 per annum. This is against the declared expenses that the applicant put down in the information form of $16,440 per annum.

(h)The applicant and his wife have been solely responsible for meeting the costs of living, working and studying in Australia based on their earnings. It is the case that if further funds are required, he could seek help from his family, although that has not yet been the situation for him and he has been able to survive living here on his and his wife’s earnings.

(i)The applicant has had a number of attempts at study. As indicated in the PRISMS report, he has some 11 CoEs, one of which he is studying now, one of which is shown as finished, and the remaining 9 are shown as cancelled. This includes the CoE for the Certificate IV in Information Technology Networking, which was an enrolment that the applicant would have arranged from his home in Nepal and was listed to be conducted at a time prior to the applicant securing his visa and being able to enter Australia.

(j)Subsequently, the applicant has had a number of enrolments in Diploma courses in the Information Technology area: a Diploma of Information Technology Networking, a Bachelor of Business Information Systems, a Bachelor of Information and Communications Technology, and a Diploma of Information Technology. On the applicant’s own evidence, he did not complete any of these. He pointed to the fact that he came here as a young man and has now matured since he married his wife and sees the value of study, and perhaps earlier on he did not. But nevertheless, it is the case that until approximately August 2019, the applicant had not completed any studies.

(k)The applicant, at about the time he applied for the visa, was intending on studying an Advanced Diploma of Leadership and Management. He set out reasons in his application for doing that. Unfortunately for him, there were problems with that particular Registered Training Organisation (RTO), and having completed a number of subjects, at least 5, the applicant was caught in a difficult position when the RTO closed. So unfortunately for the applicant, even up until earlier this year, it was still the case that he had not yet satisfactorily completed any studies.

(l)However, since March 2021, the applicant has been enrolled in a Bachelor of Information Technology at the King’s Own Institute. The applicant says that he has settled down and is studying well. He was able to give the details of the 9 subjects he has undertaken so far, and was otherwise able to give details of his education provider and give details of that particular course of study.

(m)In relation to the applicant’s future intentions, he denies that it is the case that he would seek to stay for a longer period for further studies, although the applicant did highlight the fact that he could undertake a Professional Year in respect to his computer studies. However, his pressing concern is to return home, on the evidence he gave at hearing. That is most notably because his mother has now been separated from his father, and because his sister is much younger, and eventually he will have to return home to look after her. So it would not be the case that he would extend his

residence in Australia. However, it’s important for him to get his studies, because having qualifications from overseas, he said in evidence, will assist him in getting a reasonable quality job back home in Nepal.

(n)Based on the information supplied by the applicant, and as confirmed in regard to the movement records, the applicant first arrived in Australia as a student on 18 November 2014 and has not since departed Australia.

(o)In the material the applicant supplied to the Tribunal, and in answers to questions about his studies, the applicant was able to give sufficient evidence of his knowledge of living in Australia, his associated education provider and his current course of study.

(p)As to previous visas, the applicant has previously been granted 2 student visas and associated bridging visas. The applicant indicated that apart from the current visa refusal the subject of the review in this matter, none of his previous Australian visas have been cancelled or refused and he has at all times complied with his visa conditions. He has no pending visa applications for which a decision is still pending.

(q)No travel to countries other than his home country of Nepal and Australia has been declared in answers to the Tribunal by the applicant.

(r)Apart from dealing with issues of concern and explaining his situation regarding his studies in greater detail, and his general statement of intention for his future career which will be discussed later in this decision, the applicant did not suggest there were, or give evidence concerning any other matters, which may relate to his genuine temporary entrant status in Australia.

1. During the hearing, the Tribunal raised possible concerns it may have in respect to several issues.

1. In no particular order, one issue related to the reason the applicant was studying in Australia rather than at home in Nepal. The applicant spoke generally in terms of the quality of education in Australia and the fact that it holds a person in better standing to get employment (at home in Nepal) with overseas qualifications like those from Australia. The applicant spoke of persons with Master degrees being unable to secure anything other than low level jobs in organisations such as Bunnings. However, when questioned as to providing evidence of where this has actually occurred, the applicant was not able to speak of anyone he knew that this had happened to. Other colleagues of his are still studying for their bachelor’s degrees and the situation of employment has not yet arisen for them.

1. The major issue of concern, however, was the fact that the applicant had had limited academic progress and had not returned home to Nepal during his time here. The applicant answered this question in terms of suggesting that he wished to secure qualifications, a Bachelor degree, which, along with the answer that has just been discussed, would set up the conditions for better quality employment at home in Nepal. He needs to complete his study and he has now settled down and is progressing well in his current course of study. Prior to that, he was a young man and did not have the maturity that he has now gained with increasing age and with the steadying influence of his wife. Allied to that is the fact that he will need to go home and look after his mother because of the separation of his mother from his father, and the fact that his only sibling is a much younger sister who does not have the capacity for looking after his mother at this stage.

1. As stated above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the

considerations set out in cl 500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.

1. In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No 69. As also noted above that the Direction is not to be used as a checklist but rather is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

1. In adopting that process in this case, and having considered all the factors in the Direction, on the basis of which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors, and the findings based on those factors, are not of such significance, importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors, and the findings based on those factors, have been overlooked, but rather the Tribunal, in considering its decision, has found these factors and findings of lesser weight in balancing all the factors and findings in coming to its decision overall on the merits of the review application.

1. Having had regard to the applicant’s evidence and submissions, and the applicant’s responses to the possible concerns raised by the Tribunal, which have been discussed above in this decision, and giving consideration to all the factors in Direction No. 69, the Tribunal makes the following findings:

(a)The Tribunal notes the applicant’s explanation for the value of Australian qualifications to persons such as himself in seeking suitably remunerative positions in his home country. However, the period the applicant has taken to undertake his studies, and the inability to give evidence to substantiate his bald statements as to the superiority of Australian qualifications, does lead the Tribunal to have some concerns. At worst, the lack of evidence would have the Tribunal not find that the applicant has given satisfactory reasons for his study in Australia as opposed to in his home country of Nepal. At best, those bald statements as to the superiority of Australian qualifications, made without any supporting evidence, would be a factor that the Tribunal would view only in a neutral fashion as far as the applicant is concerned. Overall, given that lack of evidence and the lack of academic progress, notwithstanding that the applicant says he is progressing well now, it is some considerable time that the applicant has been here without satisfactory progress. Overall, the Tribunal finds that the applicant has not given reasonable reasons for him to be studying here in Australia rather than in his home country in Nepal.

(b)The applicant has links in his home country in the form of his separated parents and a younger sister. He has, at this stage, no interests in any property in Nepal. However, his conduct in remaining in Australia for approximately a period of 6 years 225 days, without any return trips to Nepal, and the fact that he can keep in contact with his family comparatively easily, all leads the Tribunal to be concerned that the applicant has little incentive to return home, but rather has set himself up here in Australia. No doubt the applicant denies that it is his intention to remain in Australia, and he has answered that in evidence and spoken of his intention to return to look after his family. But overall the conduct, or the length of time and lack of academic progress, does concern the Tribunal and leads it to the conclusion that the applicant has made a life for himself here and that accordingly he does not have a significant incentive to return to Nepal.

(c)As to economic circumstances in the applicant’s home country, the Tribunal notes the applicant has stated he would suffer some degree of problems if he had to return

without qualifications. However, the Tribunal notes that the applicant did speak to the fact that he could call upon his family for financial assistance, although he had not ever attempted to do so. The concerns about difficulties in surviving financially do tend to a finding that this might present a significant incentive for him not to return to his home country, and it would be easy for the Tribunal to make that finding on the evidence.

However, noting the existence of his family at home, even though he has not sought to seek financial assistance, the Tribunal is prepared to take this into account in favour of the applicant, and overall, as far as this particular factor is concerned, it will view it in a neutral fashion as far as the applicant is concerned.

(d)There is no evidence of requirements for military service commitments affecting the applicant which would present a significant incentive for him not to return to his home country.

(e)There is no evidence of any circumstances of political and civil unrest in the area where the applicant’s family are located in his home country, Nepal, which would present a significant incentive for him not to return to Nepal. There is the worldwide COVID-19 pandemic which does present a difficulty in his home country, but as recent events in Australia have proven, it is still a virulent disease, and so there is potential concern there, but that is an understandable concern, and the Tribunal does not make an adverse finding in that regard against the applicant.

(f)In considering the circumstances in his home country, relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from a middle class family, but otherwise it does not make any findings in that regard which are other than entirely neutral towards the applicant.

(g)The applicant has ties in Australia, namely his wife, his wife’s cousin and his family, and some student friends, including an old school friend of the applicant who is also here as a student. As noted earlier, the applicant has the ability to remain in contact with his family overseas by online and other means. The fact that the applicant and his wife are working, and on a part-time basis are able to more than cover the expenses disclosed in his information form, also paints a picture of someone who has made a life for himself here. Given the length of time he has been here without academic success and without the need to return home to his family, and noting that despite the intention to return home, that will not take place until March 2023 at the absolute earliest, with the last day of his course being 3 March 2023. So overall, the conduct of the applicant, in the view of the Tribunal, weighing up factors both for him and against him, is that the applicant does not have significant incentive to return home, but rather the incentive is to remain in Australia. Accordingly, the Tribunal concludes that the student visa program is being used to circumvent the intention of the migration program.

(h)For those reasons also, the Tribunal finds that the student visa is being used to maintain ongoing residence in Australia.

(i)Because there is no secondary applicant, it becomes unnecessary for the Tribunal to consider whether the applicant has contrived to enter a relationship for a successful student visa outcome.

(j)As to the applicant’s knowledge of living in Australia, his course of study and associated education provider, the Tribunal is satisfied that the applicant has demonstrated sufficient knowledge of those matters.

(k)As to the current undertaking of studies, this can be accepted by the Tribunal. The applicant had only high school qualifications when he came to Australia and has

consistently tried to study in the IT field and is continuing to do so now at the Bachelor degree level. It seems he is progressing well, despite the fact that it has been a considerable time before he has reached this stage. The findings in that regard have been set out as to the applicant making a life for himself here. But nonetheless, the level of qualifications the applicant has been undertaking can be seen as being in order, as far as the Tribunal is concerned.

(l)Because the applicant has stated he would like to work in a programming area on his return to Nepal, then in a strict sense, the studies being undertaken relate to that, and for this reason, the Tribunal is satisfied as to the relevance of his proposed future studies.

(m)As to the remuneration to be earned, the applicant honestly admitted that remuneration levels would potentially be higher in Australia than they would be in Nepal. However, the applicant counted the cost of living differences as meaning overall he would not see that as being a determining factor, where remuneration would be of such a difference to be vastly different between the two countries. Accordingly, the Tribunal is prepared to view the remuneration issue in a neutral fashion as far as the applicant is concerned.

(n)At hearing, the applicant had been in Australia for a period of 6 years 225 days, during which time he had not returned to his home country at all. Were the applicant to remain to the conclusion of his proposed studies, counting that just to the last day of that course as noted on the CoE, being 3 March 2023, the applicant will have been in Australia for a period of 8 years 108 days.

(o)As to previous visa applications, but for the current visa application under review, the applicant has successfully been granted 2 prior Student visas and associated bridging visas. There is no evidence to suggest that any other visas the applicant has applied for in any country (including Australia) have been cancelled, or that any other visas he has applied for in any country (including Australia) have been refused. There is no evidence as to any pending decisions in relation to visa applications made but not

yet determined.

(p)As to compliance with visa conditions, similarly, there is no evidence before the Tribunal to suggest that the applicant has failed to comply with these conditions.

(q)There is also no evidence of travel to any other countries apart from the applicant’s home country, Nepal, and Australia, and as such, it becomes unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other countries.

(r)As noted, were the applicant to remain in Australia to the completion of his current enrolled studies, to the last of day of that course, he will have been in Australia for 8 years 108 days. This is in circumstances where the Tribunal is concerned by the conduct of the applicant. That conduct seems, to the Tribunal, to indicate that the applicant has made a life for himself here. He has not yet seen the need to return to his home country, Nepal, and it will be at least another almost 2 years, or at least one year 9 months, before he returns home again. He is able to live comfortably on his earnings, it would seem, the earnings of himself and his wife working part-time. He is able to keep in contact with his family on a regular basis. Overall, this, the Tribunal considers, paints a picture of a person who is someone who has made a life for himself and his family in Australia and has limited desire to return to his home country of Nepal, notwithstanding his stated intention of doing so. Rather, these are the

actions of a person the Tribunal considers is using his student visa primarily for the maintenance of ongoing residence in Australia.

(s)Given that there is no secondary applicant, let alone an infant secondary applicant, it becomes unnecessary for the Tribunal to consider the intentions of the applicant as a parent, legal guardian or spouse of any infant applicant.

(t)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

1. Balancing all these findings, the Tribunal considers the weight of the evidence points more to those factors and findings not favouring the applicant’s case than those factors which are supporting of his case, or neutral to it. No doubt there are some aspects of the applicant’s case which might point to an intention to return home, namely his stated intention of doing so. However, these, in the view of the Tribunal, are more than outweighed by the conduct outlined above, that the applicant has had an extended period of time in Australia to date without academic success, and considering his overall living circumstances in Australia. Overall, the applicant has not, in view of the Tribunal, given sufficient detailed reasons why he has failed to satisfactorily progress with his studies other than that he has seen the error of his ways as a younger person, and is now proceeding to study. As a result, the Tribunal considerers the weight of evidence points to there not being a significant incentive for the applicant to return to Nepal, and so the student visa is being used to maintain ongoing residence in Australia.

1. Having had regard to all matters, including the Direction No 69 requirements, to which regard is required, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

Conclusion on cl.500.212

1. The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student, as required by cl.500.212.

1. 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

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

Robert Cumming Member