Sanjel (Migration)

[2018] AATA 1177

Sanjel (Migration) [2018] AATA 1177 (13 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahesh Sanjel

CASE NUMBER:  1700903

DIBP REFERENCE(S):  BCC2016/3219804

MEMBER:Jennifer Cripps Watts

DATE:13 March 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 13 March 2018 at 12:07pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine applicant for entry and stay as a student – Extended time spent in Australia – No time spent in home country since first arrival – Limited value of further studies - Ties to Australia stronger than ties to home country

LEGISLATION
Migration Act 1958, ss 65, 362A, 499
Migration Regulations 1994, Schedule 2, 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 on 29 December 2016 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 28 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 the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student.

4. The visa that is the subject of this review was refused on 29 December 2016.  The applicant applied for review by this Tribunal on 18 January 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and, on 7 February 2018, the Tribunal sent the applicant a written invitation to attend his hearing scheduled on 8 March 2018.   

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before his hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for his ease of reference.

6. The applicant was informed he should provide a copy of his current Confirmation of Enrolment (COE).  The applicant responded to the hearing invitation, indicating he would attend the hearing and provided some documents in support of his application.  An SMS hearing reminder was sent to the applicant on 1 March 2018.

7. The applicant requested access to his DIAC and Tribunal files under s.362A of the Act and full access was granted. The files were sent to him electronically by the Tribunal on 22 February 2018.

8. Prior to the hearing, the applicant provided a current COE indicating he is enrolled in a course of study at the time of this decision, a Bachelor of Professional Accounting, from 1 January 2018 to 31 March 2018. 

9. The applicant appeared before the Tribunal on 8 March 2018 to give evidence and present arguments.

10. The applicant was assisted in relation to the review by their registered migration agent.

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.

    Background

13. The applicant is a 29 year old citizen of Nepal.  He completed year 12 at high school in Nepal, departed Nepal in 2008, and has resided in Australia, holding student or related bridging visas, since September 2008.  He has not departed Australia since arriving onshore.  He has declared his parents live in Nepal and that he lives with his Australian citizen brother and sister-in-law in Australia.

14. The applicant is, at the time of this decision, enrolled in a Bachelor of Professional Accounting, which finishes at the end of March 2018 – in less than three weeks, at the time of this decision.  He then wishes to continue on into Master of Professional Accounting and Master of Business Administration.  He says he has accepted the offer of enrolment, but has not yet paid the fees pending out an outcome in his visa matter.  The letter of offer of enrolment from the Holmes Institute, dated 2 March 2013, indicates that the Master of Professional Accounting starts on 2 April 2018 and finishes on 21 June 2019 and is followed by a Master of Business Administration that finishes in October 2019.  If the applicant’s visa is granted and he completes the courses on time, this will mean he has resided onshore holding a student visa for over 12 years.

15. The Tribunal has considered all relevant facts and matters, including documents provided by the applicant and his oral evidence at the hearing.  The Tribunal has considered the matters raised in the representative’s written submissions dated 1 March 2018.  The Tribunal, having considered all the evidence, is left with a strong sense that the applicant is using the student visa programme to maintain residence in Australia, notwithstanding that he has completed some courses satisfactorily.  The Tribunal’s view is that his ties to Australia are greater than his ties to Nepal at the time of this decision.  He has a particularly close and dependent relationship with his brother, who is an Australian citizen.

16. The applicant lives in Sydney with his brother and sister-in-law, who the applicant said are expecting their first child in about six months.  The applicant said that he provides essential help around the house for them because his sister-in-law has some pregnancy related health issues and his brother is busy working and, because of these things, the responsibility falls largely on him.   

17. The applicant has spent his whole adult life living in Australia.  He has not been a full time resident of his home country since September 2008 and has spent no time in his home country since he departed in September 2008, a total of nine and a half years at the time of this decision.  

    Genuine applicant for entry and stay as a student (cl.500.212)

18. 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?

19. 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.

20. 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.

21. The Tribunal has had regard to the applicant’s circumstances in his home country. Both his parents live there and he says are supported and cared for by his two sisters.  The applicant said his parents have visited Australia twice, in 2014 and 2015.  The applicant’s brother, on the applicant’s oral evidence, has returned to Nepal on three or four occasions over the years – the applicant has not returned once.  The applicant’s claim that he intends or needs to return home to assist his parents is given little credit.  The applicant says he has a girlfriend in Nepal who he met through one of his sisters, on the internet, and that he intends to return to Nepal in two years to marry her.  There is no corroborative evidence that it is a credible claim that the applicant is in a genuine relationship with her or that he does intend to return to Nepal to get married in two years’ time.

22. The Tribunal considers that the applicant has demonstrated, by his residence in Australia and apparent lack of motivation to return to Nepal even for a holiday, or to visit his parents, or to visit his girlfriend, that he has stronger ties to Australia than he does to Nepal, his home country.  He was asked why he had not returned to Nepal at any time from 2008 and said it was because his parents came to Australia, twice, in 2014 and 2015.  He was asked if his girlfriend has ever visited him in Australia and said she hasn’t.  The applicant offered no reason why he would not want or be motivated to meet her in person.  The Tribunal does not accept that the applicant is intending to get married in two years and is of the view that the applicant has stated this to support his visa application and the claim that he considers his time onshore to be temporary.

23. The applicant provided the Tribunal with copies of his recent academic qualifications:

    a.07/07/2014 to 05/12/2014                  Diploma of Management

    b.26/02/2015 to 17/06/2016                  Diploma of Business

24. The applicant was provided with a copy of his PRISMS record, as the Tribunal wished to clarify some course information contained in it.  There is no inconsistency of concern between the evidence provided by the applicant and the details contained in the PRISMS record. 

25. The applicant’s representative submitted that the applicant had studied up to 2010 (Advanced Diploma of Accounting) and then in 2011 transferred to a different provider, the Holmes Institute, where he studied a Bachelor of Professional Accounting until 2013, but did not finish it because he suffered some health problems.  It is submitted that the applicant had knee surgery and suffered depression and anxiety when his brother moved away from Sydney to participate in the regional migration programme.  The applicant says he moved to Newcastle in 2013 to be with his brother again and in 2014, with his brother’s support, resumed study when they both moved back to Sydney.  The applicant enrolled in a Diploma of Management at Crown Institute from July to December 2014 and completed the course at the end of 2014.  The applicant had a significant gap in his studies from July 2013 when he discontinued the Bachelor of Business, to July 2014, when he started the Diploma of Management.

26. In support of the claim that he could not study during 2013 and 2014 because of health problems, the applicant provided a report to the delegate, dated 25 November 2016, from Zaid Crouch.  The Tribunal has considered this evidence.  The report was prepared on the applicant’s self-reported information, with significant input from his brother Naresh at the time the applicant attend the appointment with Mr Crouch, two to three years after he claims to have suffered depression and anxiety.  It appears he saw the “Accredited Mental Health Social Worker”, registered provider of psychological services and member of the Australian College of Social Workers once, in November 2016.  The writer’s credentials are not in dispute.  There is no evidence before the Tribunal that any medical diagnostic tests were done or that the applicant was referred to the social worker by a medical doctor, or that he took any medication for anxiety or depression, or underwent any other counselling in 2013 and 2014.  The report is given no weight to support the claim that the applicant could not study because of anxiety and depression in 2013 and 2014.  It is accepted, referring to the medical evidence provided, that the applicant had knee surgery in early 2013.  It is not accepted that this is a valid or acceptable reason for the large gap in his studies from 2013 to 2014.

27. The Tribunal’s view, on the evidence, is that the applicant made poor academic progress from 2010 to the end of 2014.  Notwithstanding that he is now doing better academically and has nearly finished a Bachelor of Professional accounting, the Tribunal does not consider his academic progress over a period of nearly 10 years indicates he is a genuine applicant for entry and stay as a student, that is, a Genuine Temporary Applicant (GTE).

28. The applicant’s stated career goal, at the time of application, was that he is looking forward to stating his accounting career in Nepal.  He completed an Advanced Diploma of Accounting in 2010 and, at the time of this decision, he has nearly completed a Bachelor Professional Accounting.  He also has a Diploma of Management (2014) and a Diploma of Business (2016).  The Tribunal’s view is that the applicant is, at the time of this decision, well qualified and equipped with significant life experience (gained in his time onshore from the age of 19 to 29 and working at Hungry Jacks) to return to his home country and work as an accountant or in an accounting related field.  The Tribunal does not consider that the additional qualifications, in the applicant’s circumstances - Master of Professional Accounting and Master of Business Administration - will add value to his prospects of achieving his career goal in Nepal.

29. At the time of this decision, the applicant has, or will shortly have, the following academic qualifications:

    a.Bachelor of Professional Accounting (2018)

    b.Diploma of Business (2016)

    c.Diploma of Management (2014)

    d.Advanced Diploma of Accounting (2010)

30. At the hearing, the applicant said he had not yet paid the course fees for the Master of Business Administration starting on 2 April 2018 and, relying on this oral evidence, the Tribunal notes that the applicant has not made any financial outlay, nor will he be financially penalised if he does not commence the course.  His current Bachelor of Professional Accounting finishes on 31 March 2018, in about three weeks at the time of this decision.

31. The Tribunal’s view, having considered all relevant facts and matters, including having regard to some of the matters in Direction 69, is that the applicant has enrolled in the courses commencing in April 2018 for the primary purpose of extending his time onshore and to maintain residence.  He has provided no reliable or documentary evidence that he intends to return to Nepal in the near or distant future, even to visit. 

32. 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) and 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.

33. 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

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

    Jennifer Cripps Watts
    Member