Sherpa (Migration)

[2018] AATA 1470

Sherpa (Migration) [2018] AATA 1470 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nyima Gyalpo Sherpa

CASE NUMBER:  1621466

DIBP REFERENCE(S):  BCC2016/3455493

MEMBER:Geraldine Hoeben

DATE AND TIME OF

ORAL DECISION AND REASONS:          27 February 2018 at 3:05 pm (NSW time)

DATE OF WRITTEN RECORD:                26/04/18

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 26 April 2018 at 11:11am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant satisfies the genuine temporary entrant criterion – Significant business activities in Australia – Limited ties to home country – No evidence of preparation for studies

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, 500.212(a), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 December 2016 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 27/02/18 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. The applicant, who arrived in Australia on 28/08/16 on a 1 month visitor visa, applied for the student visa on 18 October 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.

4. 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 applicant did not satisfy the genuine temporary student visa criteria.

5. A migration agent (MA) was appointed post-hearing on 08/03/18.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 genuine temporary student visa criteria.

8. 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?

9. 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.

10. 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.

11. The Tribunal asked the applicant if he understood the purpose of the Tribunal hearing and what was required of him to bring to the Tribunal as listed in the hearing invitation dated 31/01/18. It continued the hearing in general terms was a review of his departmental decision but was in truth a rehearing of his application from the beginning that required him to bring with him today everything he wished to rely upon, including, amongst other things, all COEs, attendance certificates and schedules of academic progress and replied he understood. The applicant replied that he understood and that the department did not believe he was a genuine international student.

12. The applicant confirmed, amongst other things,  that he is a 27 single male who arrived from Nepal initially on a 1month visitor visa 28/08/16 specifically to visit his sister who is a permanent Australian resident. He confirmed that within 5 weeks of arrival he applied for the present student visa. The Tribunal raised its concern that the present student visa application appeared to be causally related to his visitor visa and enquired as to why he did not include this intention to apply for a student visitor in Australia in his visitor visa application which he made in Nepal. He replied that he was not sure until he arrived and spoke to his sister. The Tribunal asked for any information to demonstrate that he was a genuine visitor such as pre-planned Australia tours in the form of tax invoices, plans to travel or, at the very least, travel itineraries and what he and his sister planned to do together. After a delay and looking at his file, he replied he had nothing.

13. The Tribunal referred to the applicant’s various submissions including, amongst other things, a statutory declaration dated 18/02/18 summarising his study and work career including working in Qatar as a web designer for World Contracting & Decoration, establishing his own web design business in Australia, a COE in a diploma of website design course from Strathfield College Pty Ltd issued on 29/11/17 from 07/11/16-03/11/17 with accompanying certificate of completion stating that he had fulfilled the course requirements and an offer of enrolment dated 13/02/18 from Southern Cross University in a $76,800 bachelor of information course to commence on 26/02/18 to 19/02/21.

14. The Tribunal asked what diploma/degree he had been awarded in either Nepal or elsewhere and he replied he had none. The Tribunal then referred to the applicant’s statutory declaration, work in Qatar, his age the latter of which would indicate he was not straight out of school demonstrating there was a substantial gap while in Nepal and working in Qatar. The Tribunal asked him to explain this period and indicated that this would have been an ideal time for him to have obtained a degree. He claimed he had no degree from either Nepal or anywhere else except the recent diploma from Strathfield College.

15. Given this answer the Tribunal asked the applicant to produce his certificate of attendance and certificate of academic progress for the Strathfield College diploma course as requested in the hearing invitation and summarised in paragraph 11 above. He again looked at his documents but replied he did not currently have them. The Tribunal referred again to the hearing invitation of January 2018 where, inter alia, these specific documents were required to be brought to the Tribunal.  The Tribunal also referred to the delegate’s decision dated 07/12/16 over a year before where the issue of the legitimacy of his status as a genuine student had clearly been made together with similar issues as raised by the Tribunal today. There was a substantial pause but he did not add anything. 

16. The Tribunal explained to the applicant a strategy often utilised by some overseas students to give an impression that they were authentic students in the following manner: their previous courses, including those from overseas and/or otherwise from Australian education service providers, would be taken into account in being awarded certification of similar/identical courses while in Australia. That is, students would receive exemptions/credits from their education service providers without actual attendance on courses as well as not needing to demonstrate academic achievement given that this was inferred from their earlier qualifications either in Australia or overseas. The Tribunal then asked if he had any other convincing evidence to demonstrate that he had actually attended the Strathfield diploma course rather than receiving exemptions/credits for subjects already completed earlier in perhaps other courses either in Australia or overseas. There was a pause and he replied that he had never received any credits or exemptions. The Tribunal responded that it would be quite happy for him to demonstrate this assertion otherwise than by the documents above so long as whatever he submitted could be independently verified and was also persuasive and plausible. There was a delay but he made no reply.

17. The applicant made certain statements regarding his establishing a web design business in Australia and made general references to this activity as well as an Australian incorporation certificate but did not go into any detail of this.

18. The Tribunal then raised its concern as to the offer of enrolment from Southern Cross University in an expensive 3 year $76,800 course when this was at odds with, firstly, his original 1 month visitor visa, his subsequent establishment of an Australian business as well as the proposed lengthy and expensive course which he could have undertaken in Nepal. The Tribunal continued that this together with the fact that he had supposedly only initially only came to Australia for a month to visit his sister was at great odd with anything to do with remaining in Australia temporarily but rather would seem to indicate that he was establishing permanent roots both as a small Australian business operator and resident rather than a genuine temporary student entrant. He replied that it was not true. He continued that he always had an intention to return to Nepal but that Australia offered better courses than Nepal. The Tribunal asked the applicant if he had anything to demonstrate that what he was claiming to be true could be independently and persuasively verified. There was no reply.

19. The Tribunal raised its concern that he appeared to be spending more time in Australia establishing his web design business. It continued that he had produced no information to indicate that he had travelled anywhere in Australia but was more interested in other things including his new business in Australia. The Tribunal raised formally its  concern that what he appeared to be principally involved in , his web business, was at odds with one of the more important conditions of a genuine  temporary student visa that being that a student continues to study, 8202. He replied that the proposed course would make him more successful in a web design business career back in Nepal. The Tribunal then asked if he had any independent corroborative evidence to indicate that he was planning to return to Nepal to establish this type of business or, indeed, any information that he was planning to return to Nepal at all. There was another pause and he replied that it was true.

20. The Tribunal raised the issue that, in the almost 2 years he had resided in Australia, he had never returned to Nepal. This would seem to be at odds with an initial  genuine intention of a 1 month visitor visa holder. It also would seem to indicate, that together with the other indicators above including that his closest sibling, his sister, who is now an Australian citizen, together with his now more robust ties to Australia were becoming more enduring while those to Nepal were diminishing. He replied that he always had an intention of returning to his home country.

21. Based on the above including the undisputed facts that the applicant is establishing permanent ties to Australia through his new web design Australian business, that he could not produce certificates of attendance or schedules of academic achievement in the Strathfield College diploma course, that he could not produce any information at all to persuade the Tribunal that his visitor visa was not utilised as a means of entering Australia to establish a more permanent foothold here, is persuasive that he never intended to just visit Australia temporarily. He has never returned to Nepal in the entire time he has resided in Australia.  He has not provided any persuasive answers at all as to why he had not pursued a Nepalese degree course similar to his proposed Australian $76,800 course, its 3 years length indicating he has no imminent plans to permanently return to Nepal. 

22. The applicant has not been able to produce any information, plausible or otherwise, to prove that he has actually attended any Australian approved course.  Additionally, he has not been able to demonstrate a genuine intention that he was merely visiting Australia in the first instance. In this context he has not been able to present any information relating to, for example, Australian pre-paid tours or, indeed, Australian holiday travel itineraries or plans which would have been compelling evidence, to convince the Tribunal that he actually came to Australia merely to briefly travel and visit his sister.

23. The above together with the fact that one of his closest family members, his sister, is a permanent Australian resident, all are convincing indicators that the applicant’s original intention was only ever to utilise his 1 month visitor visa as an initial entry strategy into Australia so as to establish a more permanent foothold.  These unexplained facts, omissions and baffling inconsistencies above indicate that that the applicant’s true intention, when first entering Australia was never to be a genuine visitor but was part of an overall tactic to establish more permanent roots here, to take advantage of the status of his Australian permanent resident sister to establish a web design business and to prepare a pathway for his own permanent Australian residence.

24. Based on the above the Tribunal does not need to further deal with the other remaining issues set out in Direction 69. The cumulative effect of the above findings indicate that the applicant never had an intention to stay in Australia temporarily. It follows that that the conclusion to be made, based on the above is that the applicant does not satisfy the criteria of temporary in the criteria required for a genuine temporary student visa. It follows that the Tribunal does not have to deal further with any other criteria of this visa.

25. 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).

    Conclusion on cl.500.212

26. 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.

27. 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

28. The Tribunal affirms the decision under review.

    Geraldine Hoeben
    Member