Sapkota (Migration)

[2019] AATA 5769

Sapkota (Migration) [2019] AATA 5769 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sudip Sapkota
Mrs Ishowari Sharma

CASE NUMBER:  1730887

HOME AFFAIRS REFERENCE(S):          BCC2017/3504154

MEMBER:Frank Russo

DATE OF ORAL DECISION:  12 December 2019

DATE OF WRITTEN STATEMENT:         13 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 13 December 2019 at 3:58pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine student – no longer enrolled – no longer wishes to study – intends to return to Nepal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cls 500.111, 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 22 November 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 September 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 34-year-old Nepalese national. The secondary applicant is the applicant’s wife, a 32-year-old Nepalese national. The Student visa application was made in respect of a Masters of Professional Accounting. At the date of the hearing the applicant was no longer enrolled in this course, and was not enrolled in any other registered course.

5. The Tribunal gave its decision on the review at the conclusion of the hearing held on 12 December 2019. The following are the reasons for that decision.

6. The Tribunal invited the applicant to attend a hearing on 19 November 2019, but following the receipt of a request for postponement of the hearing, with an attached medical certificate, the Tribunal agreed to the postponement of the hearing and scheduled a new hearing date for 12 December 2019.

7. The applicant appeared before the Tribunal on 12 December 2019 to give evidence and present arguments.

8. The applicants were assisted in relation to the review by their registered migration agent, although their agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. The issue in the present case is whether the applicant is a genuine temporary entrant. However, at the date of the hearing the applicant was no longer enrolled in a registered course of study. Therefore, the issue is now whether the applicant meets the enrolment requirement in cl.500.211(a) for the Student visa.

    Documents considered

12. In addition to his application form, the applicant provided the Tribunal with a copy of the Delegate’s decision and the following documents:

    a.Copies of the applicants’ passports;

    b.A s.359(2) response, received by the Tribunal on 30 September 2019; and

    c.Confirmation of Enrolment (CoE) for the Diploma of Leadership and Management Australian Harbour International College, created on 25 September 2019.

13. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

    Enrolment (cl.500.211)

14. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

15. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

16. The applicant gave evidence at the hearing that he does not hold a current CoE. The applicant stated that approximately two months prior to the hearing he obtained enrolment in the Diploma of Leadership and Management at Australian Harbour International College. He stated that he felt embarrassed to go to college because of his age, and he decided that he didn’t want to go to college anymore. He told the Tribunal that a situation arose while he was attending college, and in response he had thoughts that it would be better to die than to continue to go to college.

17. The applicant told the Tribunal that he first arrived in Australia in 2008 to study a Masters in Engineering Management at Wollongong University. Prior to this he had completed a Bachelor in Mechanical Engineering in Nepal. He told the Tribunal that due to financial problems which arose at the time he first arrived in Australia, he had to drop out of the Masters in Engineering Management. He stated that he decided to do some Diploma-level courses first, and that afterwards he would then be able to re-enrol in the Masters in Engineering Management. He told the Tribunal that in the meantime he thought he might be able to gain permanent residency, which might provide him with some financial help with his studies. He stated that it was hard to get permanent residency, and therefore kept doing courses.

18. He told the Tribunal that in 2010 he decided that doing only Diploma-level courses was not good for his career, and so he enrolled in the Masters of Management (Engineering) at Central Queensland University (CQU), which he completed in 2014.

19. The applicant stated that after this he tried to obtain permanent residency again, but struggled to obtain a sufficient score for the IELTS test. He stated that when he did manage to meet the language requirements for permanent residency, he lost five points because of his age. He stated that he managed to obtain temporary residency through a Graduate Work (Subclass 485) visa after he completed his Masters of Management (Engineering), after which he returned to Nepal to marry and then returned to Australia with his wife. He told the Tribunal that he continued to try to obtain permanent residency.

20. The applicant stated that when his Graduate Work visa expired, he enrolled in a Masters of Business Administration at Holmes Institute, which he completed. He stated that after that he continued to struggle to obtain permanent residency. He stated that at the time the situation in Nepal was difficult, so he wanted to stay in Australia. He stated that he enrolled in a Master of Professional Accounting at Holmes Institute, but his visa application was refused. He stated that he then made the current review application to the Tribunal.

21. When asked why he had not continued with the Master of Professional Accounting, the applicant told the Tribunal that he had never thought of doing Accounting, and that he is weak when it comes to Mathematics, hence he felt off-track with this course. He stated that when his visa application was refused, there was no value in doing Accounting.

22. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal noted that the evidence the applicant had given about his enrolment history was overall consistent with the information contained in his PRISMS enrolment record, but indicated that the PRISMS enrolment record contained greater detail about the applicant’s course enrolments. The Tribunal therefore provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal, namely that the information may indicate that:

    a.He was not enrolled in a registered course of study at the time of the hearing;

    b.The applicant has enrolled in a range of courses in different subject matters from 2008 to 2019;

    c.According to this record, his enrolment in the Master of Professional Accounting commenced on 6 November 2017 and was cancelled on 26 April 2018, due to ‘Student Notifies Cessation of Studies’;

    d.The applicant enrolled in a Diploma of Leadership and Management on 14 October 2019, but this course was cancelled on 8 November 2019 due to non-commencement of studies;

    e.The last course the applicant completed was a General English course from September to October 2017. His course enrolments since this date have been cancelled; and

    f.The applicant has completed two Masters courses, a Master of Business Administration in July 2017, and a Master of Management (Engineering) in February 2014.

23. The Tribunal explained that this information may indicate that the applicant does not satisfy the enrolment requirement. The Tribunal explained that it may also indicate that the applicant has recently enrolled in additional courses to maintain his stay in Australia and may not have a genuine interest in these courses or in staying in Australia temporarily for the purpose of advancing academically.

24. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments or wished to respond in relation to the information contained in his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

25. The applicant indicated that he did not wish to comment on the information contained in his PRISMS enrolment record. When asked why, he stated because he knew what courses he had enrolled in. He stated that he understood the information, but didn’t wish to comment on it or have anything to say about it. The Tribunal asked the applicant whether he understood that to be granted a Student visa, he must be enrolled in a registered course of study at the time of the decision. The applicant confirmed that he understood this.

26. The applicant stated that he does not wish to study anymore. He stated that he now wishes to return to Nepal. He stated that he has now been in Australia for 10 to 12 years, and that previously everything was good, but now he feel that he needs to go back home.

27. Although the Tribunal took some evidence from the applicant regarding the Genuine Temporary Entrant criterion, given the evidence with respect to the applicant’s lack of current enrolment, the Tribunal does not need to proceed with making a finding as to whether the applicant is a genuine applicant for entry and stay as a student. The Tribunal notes that the applicant gave his evidence candidly at the hearing and indicated that he no longer wishes to study in Australia. He was also candid in stating that he did not have a genuine interest in studying Accounting, and there was no point in continuing with the Master of Professional Accounting once his visa application was refused.

28. On the applicant’s evidence, and on the documentary evidence before the Tribunal, there is no evidence that the applicant is now enrolled in or has a current offer of enrolment in any applicable course of study. On the applicant’s evidence, he no longer wishes to study and his plan is to return to Nepal. He stated that he now intends to look for work in the engineering field in Nepal, otherwise he will assist his father with his business.

29. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

30. 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.

    Secondary visa applicant

31. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria. As the Tribunal does not accept that the primary visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212.

    DECISION

32. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Frank Russo
    Member