Regmi (Migration)

[2019] AATA 906

Regmi (Migration) [2019] AATA 906 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shabir Regmi

CASE NUMBER:  1704316

HOME AFFAIRS REFERENCE(S):           BCC2016/3149132

MEMBER:Wendy Banfield

DATE:3 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 January 2019 at 9:24pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – no strong incentive to return after his studies– maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 17 February 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 22 September 2016. 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 visa 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Nepal and is currently 24 years old. He came to Australia on 9 March 2014 to study courses in Accounting leading to a Bachelor degree. The applicant began his studies but was unsuccessful in the Accounting field and changed to Business. To date he has completed a Certificate IV and Diploma of Accounting, a Certificate IV and Diploma of Business and is currently enrolled to study an Advanced Diploma of Business. The applicant was not studying for a period of 12 months from February 2015 to February 2016 and from February to October 2016. The applicant provided reasons for part of his absence from study which was due to the earthquake in Nepal in 2015.

5. The applicant appeared before the Tribunal on 23 April 2018 to give evidence and present arguments.

   Evidence of the visa applicant

6. The applicant submitted evidence in support of his application for review.

   ·     Evidence of previous enrolment and transcripts from Hannay International College;

   ·     Certificate of Enrolment (CoE) for past courses and an Advanced Diploma of Business;

   ·     Written submission addressing the Genuine Temporary Entrant criteria dated 20 April 2018;

   ·     Academic record from TAFE NSW;

   ·     Email correspondence between the applicant and TAFE NSW;

   ·     Email evidence from the applicant’s former classmates attesting to his attendance at TAFE Ultimo studying a Certificate IV in Business.

7. The applicant had submitted evidence to the Department in support of his application for a Student Visa which has also been taken into account in the Tribunal’s decision. The submissions include evidence of his previous education in Nepal and Australia, Genuine Temporary Entrant statement, email correspondence with TAFE NSW, evidence of family relationships, financial support and health insurance.

8. The applicant gave evidence that he came to Australia in 2014 to study a Certificate IV and Diploma in Accounting followed by a Bachelor of Accounting at the University of Western Sydney. The applicant did not do well in the field of Accounting and changed to a Business stream. He declared he studied a Certificate IV in Business at TAFE in 2015 but has been unable to obtain a transcript for that course. In April of that year there was an earthquake in Nepal that killed many people; according to the applicant this included an aunt of his. In addition, the applicant’s father lost his garment business in the capital. The applicant states he was advised by his family not to return to Nepal at the time. During this period the applicant did not study and as a result his visa was cancelled.

9. The applicant eventually resumed his studies and has now completed a Certificate IV in Business Administration and a Diploma of Business. The applicant is enrolled in an Advanced Diploma of Business and stated a wish to continue on to a Bachelor degree. Regarding his intentions in future, the applicant advised his father has opened a business in pipes for use in plumbing and he hopes to return to Nepal to help expand the operation. The applicant was asked why he needed to study to a Bachelor level given his stated aims. He said it was because he will learn many things that will help him in future. In elaborating further the applicant said it is not that he has to study further but he wants to because it will help him with the family business.

10. The applicant declared he has no immediate family in Australia other than cousins. He stated he lives with friends and has part-time employment at Coles. As of the date of the hearing, the applicant has not returned to Nepal since he arrived in 2014 which he said was mainly due to the earthquake. The applicant completed high school in his home country and declared he chose to study in Australia because the focus of education if more practical than in Nepal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 is a genuine applicant for entry and stay as a student in accordance with the requirements of cl.500.212.

13. 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?

14. 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.

15. 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.

16. The applicant gave evidence about his circumstances in his home country and in Australia. He had completed high school in Nepal and came to Australia to study Accounting. The applicant declared his father has a new construction pipe business established since he lost a former garment business in the Nepal earthquake in 2015. He claimed he planned to assist his father in this business on his return to Nepal. No independent evidence was provided to support the existence of a business as described by the applicant. The applicant’s parents continue to live in Nepal and he has a brother studying overseas. As of the date of the hearing, the applicant has not returned to his home country since arriving in Australia in March 2014 which was said to be because of the earthquake that occurred during his absence. The Tribunal accepts the applicant has some ongoing ties to his home country but is not satisfied on the evidence that he has a strong incentive to return after his studies.

17. During the hearing the applicant stated he shares accommodation in Australia with friends and has part-time employment at Coles. In the application for a Student Visa which is the subject of this review, the applicant stated he held a position as a team member at Coles, and had been so employed since August 2014. He said he has cousins in Australia but did not elaborate on his relationship or contact with them. According to the applicant’s evidence, his parents have been supporting his studies in Australia to date and the Nepal earthquake previously affected this arrangement. Although the applicant resumed his studies in Australia after a considerable break and is currently enrolled, the Tribunal finds the applicant’s ongoing employment, including during the time he was not studying, is an incentive for him to maintain residency in Australia.

18. The applicant’s immigration history and his oral evidence demonstrate he has not departed Australia since arriving in March 2014. This is despite the earthquake in Nepal in 2015 which was said to have affected his family directly and resulted in the death of an aunt to whom the applicant was particularly close. As of the date of the hearing, the applicant has spent four years in Australia without returning to his home country. The Tribunal considers that in this time the applicant’s ongoing connection to Nepal has diminished and the presence of his parents and his father’s business are not sufficient reason for him to leave Australia after his studies.

19. Regarding the value of the course to the applicant’s future in his home country, the applicant told the Tribunal that he plans to use his education to assist in and develop his father’s pipe business. No independent evidence was submitted about the business or what the applicant’s role in it would be. When asked why he planned to continue studying to a Bachelor level, the applicant did not answer specifically but said that what he learns will help him in the family business in future. The Tribunal found the applicant’s reasons for wanting to study a Bachelor to be vague and unsatisfactory. In addition, the applicant is currently enrolled in an Advanced Diploma of Business that is due to be completed on 10 November 2019. His plan to study a Bachelor degree would not begin until after that date. The Tribunal considers the applicant has had ample opportunity to complete his education in Australia and is not satisfied he is continuing to enrol and study for genuine reasons.

20. The Tribunal has placed weight on the applicant’s circumstances that indicate the Student Visa is intended primarily for maintaining residency in Australia. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

21. Accordingly, 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.

22. 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

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

    Wendy Banfield
    Member