Sharma (Migration)

[2019] AATA 1805

Sharma (Migration) [2019] AATA 1805 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Binay Sharma

CASE NUMBER:  1713080

DIBP REFERENCE(S):  BCC2017/967294

MEMBER:Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:          4 January 2019 at 10:53 am (QLD time)

DATE OF WRITTEN RECORD:                26 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 26 April 2019 at 12:51pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine temporary entrant – business studies – lengthy history of non-completion of courses – enrolment in five separate courses cancelled – returned to Nepal once in five years – financial difficulties– using student visa program to maintain residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 May 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 January 2019, 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

3. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 May 2017, to refuse to grant the applicant a Student (Temporary) (Class TU) visa, under section 65 of the Migration Act 1958.

4. The applicant applied for the visa on 12 March 2017.  At the time of his application, class TU contained two subclasses; subclass 500 (student) and subclass 590 (student guardian).  The applicant applied for the visa to undertaken study in Australia and does not claim to meet the criteria for a subclass 590 student guardian visa.

5. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212(a) of schedule 2 to the Migration Regulations 1994.

6. The applicant provided the Tribunal with a copy of the delegate’s decision record, dated 31 May 2017.  The Tribunal has also had access to the relevant file of the Department of Home Affairs.  Additionally, the Tribunal acknowledges that the applicant has provided the Tribunal with the printout of an email from [email protected], which purports to indicate that he is making progress in the studies that he is enrolled in at present. 

7. The Tribunal acknowledges that the applicant has also provided the Tribunal with a statement explaining the reasons that he has struggled to complete courses and outlining his circumstances and intention to return to Nepal. 

8. The applicant appeared before the Tribunal on 4 January 2019, to give evidence and present arguments.  The Tribunal also took evidence from the applicant’s witness, Ms Candice Jean Clark, with whom he resides.  Ms Clark is involved in supervising the applicant at his work at Wild Wings restaurant, located in Springwood. 

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

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 clause 500.211 to clause 500.218, must be satisfied by the applicant. The issue in the present case is whether the applicant is a genuine temporary entrant.

11. At the commencement of the hearing, adopting the process set out in section 359AA of the Act, the Tribunal provided the applicant with the information that the Tribunal had obtained from the PRISMS record database.  The Tribunal explained the relevance of the information and the consequences of the Tribunal relying on it, and confirmed with the applicant that he was prepared to comment on that information during the hearing today.

12. That information indicates that the applicant has a current COE, and is studying at Lifetime International Training College, in the course, Advanced Diploma of Business, which commenced on 15 October 2018 and is to end on 18 October 2019.  PRISMS also indicates that there is a relatively lengthy history of non-completion of courses, since the applicant arrived in Australia in 2013. 

13. The applicant acknowledges that the PRISMS records correctly reflect his course history.  Since he arrived in 2013, the only course that the applicant has completed is the English Language Program’s beginner to advanced course, which he finished on 20 December 2013.  In the intervening period, between 2013 and his obtaining a COE for the course that he is presently enrolled in at Lifetime International Training College, a period of approximately five years has passed.  During this period of time, the applicant had his enrolment in five separate courses cancelled.  They are, a Diploma of Information Technology, which was cancelled in 2015, a Bachelor of Professional Accounting, which was cancelled in 2017, a Bachelor of Information Technology, cancelled in 2016, a Bachelor of Professional Accounting, cancelled in 2017 and a Bachelor of Business, which was cancelled in 2018. 

14. The Tribunal has given the applicant an opportunity to explain the reason that he was unable to undertake any study during the five-year period. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No. 69, Assessing the genuine temporary entrant criterion for student visa and student visa guardian applications, made under section 499 of the Act. This Direction requires the Tribunal to have regard to a number of specifying factors, in relation to the applicant’s circumstances in his home country and potential circumstances in Australia and the value of the course to the applicant’s future.

15. The applicant has explained that his mother, father and grandmother, continue to reside in his home country of Nepal.  He says, and the Tribunal accepts, that the circumstances of the earthquake in Nepal would have posed some difficulties and created some stress for his family.  The applicant explains that his father, at one point, had a hardware business in Nepal.  He no longer has the hardware business.  The applicant explains that he is the only son of his parents and that it is expected of him that at some point, he will return to Nepal to care for them and also to care for his grandmother.  The applicant has told the Tribunal that in the time that he has been in Australia, following the earthquake in 2014, he returned to Nepal for a three-week period.  Other than that, he has not returned to Nepal since 2014.

16. The applicant is earning approximately $400 per week, working between 15 to 20 hours in the business that he is working in, Wild Wings.  The applicant concedes that he is earning more than he would earn for working in Nepal.  The applicant says that he has plans to return to Nepal and open a business and that he has discussed those plans with his father.  He says that for this reason, he would like to be given the opportunity to complete business studies in Australia. 

17. The applicant does not have any negative immigration history that is before the Tribunal and the applicant has otherwise explained to the Tribunal, relevant to the considerations the Tribunal must have regard to under Direction 69, that he has found it stressful, in order to manage his studies and to support himself financially while he is in Australia.

18. Both Ms Clark and the applicant gave evidence, which the Tribunal accepts, that Ms Clark’s husband’s father is college friends with the applicant’s father and they have struck a deal following the financial difficulties that the applicant’s father has experienced in Nepal, whereby the applicant is being supported by Ms Clark’s father-in-law.  Additionally, as part of the support network, the applicant is residing with Ms Clark, her husband, and their 4-year-old child.  Because Ms Clark has a 4-year-old child, she is unable to work as often as she would like in her family business (Wild Wings) and for this reason, the applicant sometimes performs shift work, which both the applicant and Ms Clark gave evidence about. 

19. In balancing the considerations under Direction No. 69 and in making a decision as to whether the applicant is a genuine temporary entrant, the Tribunal is concerned that the explanation offered by the applicant, that there has been stress in his studies and some difficulties following the earthquake in Nepal, are not adequate explanations to explain the length of time that the applicant has resided in Australia on a student visa, while not studying.  The Tribunal is also concerned that there is no detail to the plans that the applicant has opening a business upon his return to Nepal.  The Tribunal is also concerned that the has returned to Nepal only once, in the approximately five-year period that he has resided in Australia. Overall, weighing the various factors up, the Tribunal considers that by enrolling in his current course, the applicant is not intending genuinely to study and earn a degree, but is looking to extend his stay in Australia.

20. Having carefully considered the applicant and Ms Clark’s oral evidence, the Tribunal is not satisfied that the explanations provided by the applicant indicate that he has clear plans to pursue a career back home in Nepal and considers that the period of time that he has been present in Australia was ample, if he genuinely intended to progress his studies.  The Tribunal notes that there is a five-year period between his completing the only course that he has managed to complete in Australia in English ,and his enrolling reasonably recently, in October of 2018, in the course that he presently claims to want to complete.

21. The Tribunal considers that an applicant who is a genuine temporary entrant, will have circumstances which support a genuine intention to remain in Australia temporarily. 

22. In the Tribunal’s view, the applicant hasn’t demonstrated that this is his intention and the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia. 

23. On the basis of these considerations, the Tribunal is not satisfied that the applicant meets clause 500.212(a). Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student, as required by clause 500.212.

24. Given these findings, the Tribunal finds that the criteria for a grant of a subclass 500 student visa are not met.  The applicant has not claimed to meet the criteria for a subclass 590 student guardian visa.

25. Accordingly, the decision under review must be affirmed.

    DECISION

26. The Tribunal affirms the decision under review.

    Bridget Cullen
    Member