Shrestha (Migration)

[2022] AATA 1403

Shrestha (Migration) [2022] AATA 1403 (17 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arushpin Joon Shrestha

REPRESENTATIVE:  Mr Sanjeev Prasad Pandey (MARN: 1172267)

CASE NUMBER:  2114161

HOME AFFAIRS REFERENCE(S):          BCC2020/2765605

MEMBER:Vanessa Plain

DATE:17 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl 500.212 of Schedule 2 to the Regulations

Statement made on 17 May 2022 at 11:43am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – long stay from young age – academic progression and value of course to applicant’s future – offer of employment in home country conditional on completing studies – course nearly completed – family ties – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 5 December 2020. The delegate refused to grant the visa on 6 October 2021.

2. The delegate made the decision in whole or substantial part on the basis that evidence of:

   ·Family ties in Nepal or the UAE

   ·Business plans

   ·Job offers

   ·An explanation as to why an Australian qualification would assist him in achieving his career goals by comparison to a qualification that could be obtained in the applicant’s home country   

   was not provided as required to satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 500 student visa.

3. The delegate’s decision record reveals that the applicant is a young Nepalese man who first  arrived in Australia in September 2014 utilizing an initial student visa.  The applicant arrived in Australia straight after completing his secondary school studies in the UAE.  The delegate attributed weight to the fact that the applicant may have lodged the visa application in response to his relationship breakdown as a means to stay onshore, as evidence of the fact that the applicant may not be a genuine temporary entrant.  The delegate held significant concerns the applicant’s primary motivation in applying for a Student visa was to secure ongoing residence in Australia   

4. The applicant appeared before the Tribunal on 9 May 2022 to give evidence and present arguments.

5. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. In advance of the hearing, the Tribunal received the following documents:

   • COE for a Graduate Diploma of Management (Learning)

   ·    Signed GTE statement

   ·    Response to request for student visa information (s 359(2) of the Act)

   ·    A suite of academic documents evidencing course attendance, grade attainment and course completion

   ·    Research into the job market in the IT sector in the applicant’s home country

   ·    Job availability in the IT sector in Nepal and the UAE

   ·    Bank statements

   ·    Offer of employment conditional upon completion of studies

8. At the hearing, the applicant stated that he came to Australia as a very young man and acknowledges that he has not been in Australia for a  short period, however, he has one approximately one week until his course finishes and it is his intention to return to his home country after the conclusion of his course.  He stated that he does not have any intention to apply for further visas.  His parents live in Nepal and he is most concerned about having an adverse immigration history in the form of a visa refusal in circumstances where he has been a good student and has nearly finished his studies.   

9. This is a unique case.  The Tribunal finds that the applicant has been in Australia for an unduly long period of time.  However, when considered against the applicant’s strong academic results obtained throughout his studies and the fact that he only has a very short period of time until he completes a Graduate Diploma, the Tribunal finds that he is not utilising the student migration program to obtain long term residency.  The evidence before the Tribunal clearly establishes that the applicant has attended class and progressed academically and is now well on the way to completing his course.    

10. The Tribunal places significant weight upon the documents produced by the applicant in advance of the hearing which establish his significant family ties to Nepal and the fact that he has addressed the rightful concerns held by the delegate.  These are strong indicators of a genuine student who intends genuinely to stay in Australia temporarily for the purposes of study. 

11. The Tribunal further finds that the applicant has reasonably demonstrated the value of the course to his future to an extent that outweighs the current cost of completing the courses.  It is further satisfied that the applicant is aware of his visa conditions and does not have an adverse immigration history in Australia.     

12. In light of the new evidence received and the findings set out above, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·cl 500.212 of Schedule 2 to the Regulations

    Vanessa Plain
    Member