Shrestha (Migration)

[2020] AATA 6066

Shrestha (Migration) [2020] AATA 6066 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manendra Shrestha
Mrs Rupa Acharya
Miss Samantha Shrestha

CASE NUMBER:  1920670

DIBP REFERENCE(S):  BCC2019/1218300

MEMBER:Robert Cumming

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 December 2020 at 2:04 pm (QLD time)

DATE OF WRITTEN RECORD:                5 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met ­– course is inconsistent with previous educational level – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.311

APPLICATION FOR REVIEW

1. At the hearing of this application on 17 December 2020 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

2. This is an application for review of a decision made by a delegate of the now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 27 June 2019 to refuse to grant the applicant a Student (Temporary) Class TU Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).

3. The primary review applicant (the applicant) applied for the visa on 11 March 2019.  At the time of the 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 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 intended genuinely to stay in Australia temporarily.

5. The applicant appeared by telephone before the Tribunal on 17 December 2020 to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID‑19 pandemic.  However, the more practical reason for the hearing by telephone was that the Tribunal, as constituted, was sitting in Brisbane, and the applicant was resident in Dee Why, New South Wales.  As such, a remote attendance would have been necessary anyway, even though it is the fact that face to face hearings have been put on hold because of the pandemic.

6. In any event, it was put to the applicant at hearing as to his acceptance of conducting the hearing by telephone, and he accepted and agreed to that course of action.  The Tribunal therefore is satisfied the applicant was given a fair opportunity to give evidence and present arguments. 

7. The Tribunal hearing was conducted with the assistance of 2 interpreters in the Nepali and English languages. 

8. The applicant was assisted in relation to the review by his registered migration agent.

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. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

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

11. 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?

12. 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, a copy of which was provided to the applicant in the course of the application process by the Tribunal, 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.

13. 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.

14. The Tribunal has had regard to all the information supplied to the Department with the visa application, which is on the Departmental file provided to the Tribunal, and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the submissions and supporting documents supplied to the Tribunal on 29 July 2019; the completed Request for Student Visa Information form (information form) received by the Tribunal, together with the supporting documentation, on 22 May 2020; the further supporting documentation received on 3 December 2020; and the further submissions and supporting documents received on 15 December 2020; as well as the oral evidence and submissions given by and on behalf of the applicant at the hearing.

15. The Tribunal notes that it has on its file certain information which was not provided by the applicant.  These were printouts from the Provider Registration and International Student Management System (PRISMS) and the Departmental movement records.  While information and submissions in relation to this material had been supplied by the applicant in the course of the material he had already supplied, nevertheless out of fairness and in accordance with s.359AA of the Act, the Tribunal arranged for copies of these printouts to be sent to the applicant and his registered migration agent prior to the hearing, and the applicant had them available at hearing and was given time to consider the material and comment upon it.

16. In this regard some discussion ensued as to whether the applicant required additional time to deal with the information.  In questioning put to the applicant, the applicant indicated that he considered the material in the printouts was accurate, or at least the applicant did not challenge the accuracy of the information in those printouts.  The Tribunal referred to the explanations the applicant had given previously, noting lack of travel because the applicant was engaged in study, and the poor advice received from an agent previously, resulting in the applicant losing some 18 months of time pursuing studies which did not really suit him and which he did not really succeed in.

17. Having had those explanations, and then questioning the applicant as to whether he required additional time, what transpired was that the applicant was concerned that there may be questions put to him which he may not be able to answer, and for that reason he felt he needed the comfort of requiring additional time.  When it was put to the applicant whether there was in fact any other submissions he wished to make, the applicant said he did not have any further information or submissions to make in relation to the information contained in the printouts.  On this basis it was put to the applicant that the Tribunal would proceed to hear the application, noting the explanations already given.  The applicant did not challenge that particular decision and continued to participate in the hearing.

18. Based on all the information available to the Tribunal, most notably that material supplied by the applicant, the applicant’s circumstances may be summarised as follows: 

    (a)The applicant is a 36-year old citizen of Nepal who first arrived in Australia on 21 October 2016 as the holder of a Subclass 500 student visa. 

    (b)The applicant has links in his home country in the form of his parents and a sister.  The applicant’s family are involved in business in Nepal, and indeed the applicant, with family assistance, conducted a business himself, Samantha Surgical Traders, but that business has now ceased trading, although the applicant says that it has been maintained as a registered business.

    (c)The applicant described his family as a middle-class family, and they have been assisting him with some financial assistance in order to help defray the costs of the applicant and his family living, working and studying in Australia. 

    (d)The applicant keeps in contact with his family on a regular basis through telephone contact, as well as online through social media applications. 

    (e)The applicant indicated in the completed information form that he has no concerns in respect to military service commitments or political and civil unrest in the area of Nepal where his family live.

    (f)In Australia the applicant has his wife, their daughter, and also his younger brother who lives approximately one hour’s drive away from where the applicant is living.  The younger brother works as a nurse, having arrived in Australia approximately 12 years ago as a student, and has now succeeded in achieving Australian citizenship.  The applicant says he spends most of his time with his family or attending the Hindu temple, most notably on the occasions of cultural and religious significance.  Other than that, he does not have a wide circle of friends with whom he socialises.

    (g)The applicant has worked in Australia during his time here.  From approximately October 2017 he has worked at a restaurant called The Indian Joint, which is situated on the Collaroy Plateau, and indeed during the course of the hearing he called his employer, Mr Harpreet Singh Virk, to speak on his behalf, which Mr Virk did.  He spoke highly of the applicant and his work ethic, and his ability to learn quickly; and were it not the case that the applicant had told him that he intends returning to Nepal, he would happily employ him on a full‑time basis.  As noted, the applicant is living with his wife and daughter, who are the secondary applicants, but his wife is not working and is undertaking home duties.

    (h)When the applicant came to Australia he initially undertook English language studies, being a General English - Beginner to Advanced (8 to 52 weeks) course, which he duly completed, and has provided the certificate of completion for that.  This took the applicant into the early part of 2017.  Thereafter the applicant enrolled in a Master of Business Administration and there were several Confirmation of Enrolments (CoEs) in evidence in respect of that course. 

    (i)In that regard, the applicant told the Tribunal that an agent had advised him to match those studies with a Master of Professional Accounting so he would be able to get two qualifications during a similar period of study. However, the applicant had some difficulties in relation to those subjects.  While he did pass some subjects, notably he did not pass a number of others, and he highlighted that accounting was not his particular background.  And as a result, approximately in the middle of 2018 the applicant had a change of career and decided to move into the catering and hospitality management field.

    (j)The applicant has, towards the middle of 2020, succeeded in completing his qualifications in that regard.  He has obtained and has produced the certificates of completion or testamurs showing completion of the Certificate III in Commercial Cookery, and his Diploma of Hospitality Management, the latter being issued on 15 September 2020.  The applicant has now enrolled in an Advanced Diploma of Leadership and Management at the Lead College which will see that course undertaken from 9 November 2020 through to 8 May 2022. 

    (k)It is noted the applicant had qualifications when he arrived in Australia, both Bachelor and Master degrees in Healthcare Management and he had also studied in the United Kingdom and obtained an Advanced Professional Diploma in Management Studies.  The certificates for all the courses the applicant has completed, both at home in Nepal, in the United Kingdom and Australia are on the Tribunal file having been supplied by the applicant.

    (l)The applicant’s work history at home in Nepal related to his healthcare management background: he was a Hospital Administrator at the Miteri Hospital and Research Centre between September 2006 to August 2009.  He was then a Pharmacy Manager at Microlab Clinic from the end of 2007 through to the end of 2009 and then, as noted, he was involved with his family in being the proprietor of his surgical supply business, Samantha Surgical Traders which he operated from 2012 up until earlier in the year of 2016 prior to his departure for Australia.  References have been supplied from all those businesses testifying highly to the work ethic and abilities of the applicant.

    (m)In regard to the applicant’s future intentions, he advised the Tribunal that on completion of his current studies he intends returning with his family to Nepal and gaining experience working in the hospitality and catering industry.  The applicant noted that in particular in Kathmandu there are a number of high class hotels and other such venues where he could gain experience and after approximately two years or so it would be his intention to open his own business.  Most notably his employer Mr Virk indicated interest in going into partnership with a culinary business and so that may well be a course of action that is undertaken.

    (n)Based on the information supplied by the applicant to the Tribunal in the information form, and as confirmed in regard to the movement records, the applicant first arrived in Australia on 21 October 2016 and has not since departed Australia. 

    (o)In the material the applicant supplied to the Tribunal, his submissions and in oral evidence, the applicant was able to give sufficient evidence of his knowledge of living in Australia and his associated education provider, however something more will be said later in these reasons as to the knowledge in relation to the current course of study.

    (p)As for previous visas, the applicant has been previously granted one student visa and associated bridging visas.  In the information form the applicant said that he has not applied for any other Australian visas for which a decision has not yet been made, nor have any other Australian visas that he has applied for been cancelled or refused.  The applicant indicated he had been complying with the conditions of his visa. 

    (q)The applicant gave evidence that his travels in addition to travel between Nepal and Australia included travel to the United Kingdom but there were no issues with respect to the visa situation for the 18 months he spent in the United Kingdom studying.

    (r)Apart from dealing with issues of concern and explaining his situation regarding his studies in greater detail and his general statement of intention for his future career which will be discussed later in these reasons, the applicant did not suggest there were or give evidence concerning any other matters which may relate to his genuine temporary entrant status in Australia. 

19. During the hearing, the Tribunal put to the applicant possible concerns it may have in respect to several issues. 

20. In no particular order, one issue related to the reason the applicant was studying in Australia rather than at home in Nepal. In relation to his current studies that he was undertaking, the applicant answered this in terms of the fact that the COVID-19 pandemic had caused difficulty in travelling and it would be an expensive exercise for him to return home hence the reason to use the time here in Australia to gain qualifications, so that was why he had enrolled in his current course.  As to any investigations as to similar courses in Nepal offering similar subject matter, the applicant answered this by way of saying that the quality and acceptance of Australian qualifications was much higher than any qualifications he could obtain from Nepal.  When pressed, he was not able to give actual evidence of this claim as to the difference in quality in the respective education systems other than to say that he himself had worked in Nepal. 

21. The next issue related to the actual course the applicant was undertaking.  When first questioned he said he had done some assignments in strategic planning and management and that he thought that there was some 30 to 40 units of competency required for the course.  When the Tribunal indicated it was looking at the course outline online, the applicant then managed to identify the course competencies and the number required to obtain the course qualification. 

22. It was also put to the applicant in relation to those studies that he was amply qualified already. Certain of the competencies from his United Kingdom studies and previous business administration studies were suggested by the Tribunal to the applicant to already cover what he would study in his current course.

23. On the basis that he already had those qualifications, the Tribunal asked the applicant what other particular skills, knowledge and attitudes he would be gaining from the studies in which he was currently enrolled. The answer given in this regard was largely that those qualifications had been obtained some time ago and he just wished to update his knowledge.  When pressed as to what particular subject matter he was lacking and what he was specifically focusing on learning from the course, the applicant could not answer this other than to say that he just needed to update his knowledge.

24. Some subsidiary issues about staying in Australia were put to the applicant.  Firstly, why should the Tribunal not consider that the applicant would be guided by his brother’s example and seek Australian citizenship.  The applicant answered this by saying that as the elder son it would be his responsibility to look after his parents.  The Tribunal suggested that his sister back home in Nepal may be able to do that and the answer was that this was culturally the son’s responsibility and his sister had her own family and other responsibilities. 

25. Another issue about staying in Australia was the high regard the applicant was held in by his current employer and whether that might result in sponsorship for permanent residence and permanent employment.  This was answered simply by the assertion that it would be flattering to be offered but certainly the intention was to return to Nepal and therefore that would not be a course of action undertaken.  That situation was corroborated by the evidence of his employer, Mr Virk.

1. Another issue of concern that the Tribunal had was in relation to the stated intention of the applicant to return home to Nepal yet the applicant signed on for an extra course which would see the applicant remaining in Australia until approximately May 2022.  The applicant was asked whether he had made any enquiries about his ability to return to Nepal as a Nepalese citizen, noting that that option was generally portrayed in the media as being available although the quantity of flights was not as great as normal.  The applicant said that he had made enquiries and it would be very expensive, something of the order of AU$7,000 to fly his family home and therefore he decided to stay in Australia and undertake further studies.

2. It was put to him that those further studies would cost him AU$9,000 (according to the CoE) and the applicant answered this by saying that the cost of his studies was not paid all in one lump sum and that it was paid in instalments. 

3. As stated above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl.500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.

4. In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69. As also noted above, that Direction is not to be used as a checklist but rather is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. 

5. In adopting that process in this case, and having considered all the factors in the Direction, on the basis of which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors and the findings based on those factors are not of such significance, importance, or materiality to its decision to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors and the findings based on those factors have been overlooked, but rather, the Tribunal, in considering its decision, has found these factors and findings of lesser weight in balancing all the factors and findings and coming to its decision overall on the merits of the review application. 

6. Having had regard to the applicant’s evidence and submissions including submissions given on his behalf by his registered migration agent and his employer and the applicant’s responses to the possible concerns raised by the Tribunal, which have been discussed above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:

   (a)The Tribunal can accept that the applicant travelled to Australia, initially undertaking English language studies, and then seeking to build on qualifications consistent with his existing education levels by undertaking business administration studies.  The Tribunal can accept that the applicant had difficulties in those studies and some 18 months was not productively used.  The Tribunal can accept that the applicant had a change of mind and wished to study catering and hospitality studies and has duly completed those.  The Tribunal notes that the reasons given for the applicant now studying his Advanced Diploma of Leadership and Management are on the basis that similar courses do not have the same level of weight given to them or acceptance internationally, such that Australian qualifications are more highly regarded than Nepalese qualifications. No particular evidence was presented of that other than the applicant saying that he had worked in Nepal himself.  In the absence of that evidence it makes it difficult for the Tribunal to accept the reasons given by the applicant for not studying in Nepal.  At worst, the applicant would have not satisfactorily explained why he was studying and, at best, the issue would be one where the Tribunal would take a neutral view of the explanations given by the applicant.  Overall, the Tribunal considers that the lack of evidence given to support the bald assertion of the superior nature of qualifications is not sufficient to satisfactorily supply reasonable reasons for the applicant not undertaking the study in his home country.

   (b)The applicant has links in his home country in the form of his parents and a sister.  The applicant has an involvement in a business that is no longer trading and otherwise has no assets or property registered in his name in Nepal.  Any property that is available is family property owned by parents and grandparents.  The applicant’s conduct in remaining in Australia with no return journeys home since his initial arrival in 2016; the fact that he is set up with his family here and can maintain ongoing contact with family members overseas on a regular basis; he has the support to remain here, the explanation given for remaining in Australia was the COVID-19 pandemic when an opportunity was available to travel home which the applicant decided not to take and decided to remain in Australia for a further length of time incurring expense, albeit over time, of a greater sum than would be expended on the cost of the air travel as given by the applicant in his evidence; and the fact that the applicant had referred to a higher cost of living in Australia than in Nepal, all paints a picture of someone whose conduct shows that there is not a significant incentive for him to return to his home country. Rather, it is the case that it seems that he has made a life for himself in Australia and indeed when the opportunity presented itself to return home, he decided to extend his stay rather than travel home. 

   (c)As to economic circumstances in the applicant’s home country, the Tribunal notes that there would be family support if the applicant had to return.  Accordingly, the Tribunal considers the economic circumstances of the applicant in his home country, Nepal, would not present a significant incentive for him not to return to his home country.

   (d)There are no requirements for military service commitments affecting the applicant which would present a significant incentive for him not to return to his home country. 

   (e)There are no circumstances of political and civil unrest in the area where the applicant’s family are located in his home country, Nepal, which would present a significant incentive for him not to return to Nepal.

   (f)In considering the circumstances in his home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from a middle class family but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant. 

   (g)The applicant has ties in Australia, namely his wife and their daughter and a brother with whom the applicant has contact on a weekly basis, although they do live apart.  That brother arrived in Australia some 12 years ago, was a student and is subsequently now working as a nurse having become an Australian citizen.  The applicant has work here and is pursuing studies although, as will be discussed shortly, the Tribunal is not satisfied the applicant fully and satisfactorily explained the necessity for him to be undertaking those studies.

   (h)All those circumstances seem to the Tribunal to paint a picture of someone who has made a life for himself and his family here and there is not a significant incentive for him to return home but, rather, the incentive is to remain here in Australia.  Accordingly, the Tribunal concludes that the student visa program is being used to circumvent the intention of the migration program. 

   (i)For those reasons also, the Tribunal finds that the student visa is being used to maintain ongoing residence in Australia.

   (j)Because both the applicant and the secondary adult applicant are citizens of Nepal and the applicant had married his wife in 2009 before arrival in Australia, the Tribunal does not consider that any benefit in a citizenship sense accrues to the applicant and, accordingly, the Tribunal does not consider the applicant has contrived to enter a relationship for a successful student visa outcome.

   (k)As to the applicant’s knowledge of living in Australia, the Tribunal is satisfied that the applicant has demonstrated sufficient knowledge of this and also in relation to the education provider.

   (l)As to the current undertaking of studies, the Tribunal has difficulty in accepting the explanations given by the applicant.  When queried as to the course content and units of competency, the applicant did not answer this correctly.  When asked about the studies being undertaken the applicant did not name a correct course unit as per the course program which he subsequently located online. The applicant’s inability to specify exactly what skills, knowledge and attitudes he would gain from the particular course that he did not already have from his previous studies other than the general assertion that those studies were some time ago and he needed to update his skills, does not in the mind of the Tribunal constitute a sufficient explanation of his course of study and the reasons for that study.

   (m)Indeed, the course is inconsistent with his previous educational level, Masters level in Healthcare Management, although it is accepted that applicants can make career changing decisions and move from one career to another during their working life.

   (n)Because the applicant is working in catering, his recently completed catering and hospitality studies can be regarded as relevant to a future intention to work in that industry.  However, the inability to specify exactly the reason for undertaking the Advanced Diploma of Leadership and Management and what particular subjects were necessary for him to move forward in his career does cause the Tribunal concern and does cause the Tribunal to doubt the relevance of that course going towards the applicant’s future career.

   (o)As to remuneration the applicant could expect to receive, in evidence the applicant said he expected to receive approximately the Nepali equivalent of AU$1,300.00 per month.  When asked whether this was greater than or less than he would earn in Australia the applicant honestly said that he would earn more in Australia and this is evident from the level of his earnings already.  But in any event the applicant did express the view that costs of living in Nepal were cheaper than in Australia and the effect of earning a lesser income was not of as great significance. No evidence was presented to substantiate this but while that may warrant the Tribunal viewing that adversely as far as the applicant is concerned, in all the circumstances, on this aspect of remuneration, the Tribunal will treat this in a neutral fashion as far as the applicant is concerned.

   (p)At the hearing the applicant had been in Australia for a period of approximately 4 years and 59 days during which time he had not returned to his home country.  Were the applicant to remain to the conclusion of his proposed studies, counting that just to the last day of that course on 8 May 2022, the applicant will have been in Australia for a period of 5 years and 201 days.

   (q)As to previous visa applications of the applicant, but for the current visa application under review, the applicant has successfully been granted one prior student visa and associated bridging visas.  There is no evidence to suggest that any other visas the applicant has applied for have been cancelled or that any other visas he has applied for have been refused.

   (r)As to compliance with visa conditions, similarly there is no evidence before the Tribunal to suggest that the applicant has failed to comply with these conditions. 

   (s)As to travel to other countries apart from travelling between Nepal and Australia in 2016 the applicant had previously studied in the United Kingdom and travelled there for those studies.  However, there is no evidence before the Tribunal to suggest that the applicant failed to comply with the migration laws of the United Kingdom during his period of study in that country.

   (t)As noted, were the applicant to remain in Australia to the completion of his current enrolled studies, to the last day of that course, he will have been in Australia for some 5 years 201 days.  This is in circumstances where the Tribunal is concerned by the conduct of the applicant.  The conduct in that regard is remaining in Australia without travelling back home.  It is accepted that the applicant was studying during that time, although there were periods where there were problems with his study and cessation of certain subjects or courses, but nevertheless it appears that the applicant is content to remain in Australia extending his stay even when he had the opportunity to travel home at the conclusion of his catering studies. He elected to stay for a further period of 18 months in circumstances where the cost of this would appear, on the evidence given, far to exceed the cost of the applicant being able to travel home at this time.  This causes the Tribunal to consider that the applicant does not have a significant incentive to return home. Moreover, in questioning as to the study the applicant was undertaking and the inability initially to correctly answer this question and the inability to specify exactly what skills, knowledge and attitudes he would be gaining from his studies over and above the studies he has already completed and skills he has obtained from those studies does cause doubt in the mind of the Tribunal as to the intentions of the applicant as demonstrated by that conduct as just set out. This, the Tribunal considers, paints a picture of someone who has made a life for himself and his family in Australia.  In fact, he has his wife, daughter and brother here.  All this leads the Tribunal to a finding that the applicant is a person who has set themselves up in Australia and has limited desire or intention to return to his home country of Nepal.  Rather the actions are those of a person who is using his student visa primarily for the maintenance of ongoing residence in Australia.

   (u)Given the third named applicant, Samantha Shrestha, is a minor, currently aged 9 years, the Tribunal finds that her intentions are governed by the intentions of her father, the applicant.

   (v)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

7. Balancing all these findings, the Tribunal considers that the weight of the evidence points more to those factors and findings not favouring the applicant’s case than those factors which are supportive of his case.  No doubt there are reasons that may point to an intention to return but these are more than outweighed by the conduct outlined above whereby the applicant and his family have extended their stay here when the reasons for that have not been sufficiently articulated or explained as far as the Tribunal is concerned.

8. As a result, the Tribunal considers the weight of the evidence points to there not being a significant incentive for the applicant to return to Nepal and so the student visa is being used to maintain ongoing residence in Australia.

9. Having regard to all matters, including the Direction No.69 requirements, to which regard is required, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

   Conclusion on cl.500.212

10. 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.

11. 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 applicants

12. The secondary applicants’ visa applications are dependent on the success or otherwise of the applicant’s visa application. In particular, cl.500.311 of Schedule 2 to the Regulations requires that the secondary applicants, namely the applicant’s wife and the applicant’s daughter, are to be members of the family unit of a person who satisfies, or has satisfied, the primary criteria for a student visa.

13. It follows that because the applicant has been found not to meet the criteria for the grant of a student visa, the secondary applicants do not meet the secondary criteria for the grant of a Subclass 500 (Student) visa and the decision under review must be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas.

    Robert Cumming
    Member