Shrestha (Migration)

[2018] AATA 5576

Shrestha (Migration) [2018] AATA 5576 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harshan Krishna Shrestha
Mrs Dechya Shrestha

CASE NUMBER:  1708489

HOME AFFAIRS REFERENCE(S):           BCC2017/69129

MEMBER:David Barker

DATE:22 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 October 2018 at 2:27pm

CATCHWORDS
MIGRATION –– Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine Temporary Entrant (GTE) – ceased study – economic motivation for maintaining residency – evidence of COE – generalised evidence as to why current post graduate accounting course necessary for future employment options in home country – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, r 1.12, cls 500.211 - 500.218

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 3 April 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 6 January 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicants appeared before the Tribunal on 26 July 2018 to give evidence and present arguments.

5. The applicants were assisted in relation to the review by their registered migration agent.

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

   Background

7. The applicant is a national of Nepal and is 29 years old.  The second named visa applicant is the spouse of the applicant.  She is also a national of Nepal and is 30 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application states that the applicant arrived in Australia in November 2008 on a Subclass 572 Student visa as a dependant on his wife, who is the second named visa applicant in relation to the current application for a Subclass 500 Student visa.  The delegate noted that since his arrival in Australia, the applicant had been granted a further two Student visas as the dependent visa holder and two as the primary visa holder. The most recent visa grant to the applicant, prior to his application for a Subclass 500 Student visa in January 2017 was as the dependent spouse on his wife's Subclass 485 graduate work visa.

9. The delegate noted the applicant’s claim that since his arrival in Australia he had completed a Diploma of Business Administration in November 2013 and that he wished to study a Bachelor of Business (Management and Finance) so as to consolidate skills he had gained whilst working at a Costco Wholesale supermarket located at Parramatta, NSW.  In a written statement provided to the Department with his visa application addressing the Genuine Temporary Entrant (GTE) criteria the applicant stated that: 

   The only purpose of my visa application to the Department of Immigration and Border protection is for me to complete my Bachelor of Business degree. I would like to assure the Department that, after the completion of this course, myself and my wife will be returning back to Nepal to start our new life.

10. The delegate expressed concern that despite there being no constraint on the applicant’s ability to undertake studies in Australia whilst a dependant on his wife’s Subclass 485 visa, he had ceased study in a Bachelor of Business course. The delegate expressed concern the general migration history for the applicant and his wife was indicative of their ‘taking turns’ when making visa applications as a way of extending their time in Australia as holders of temporary visas, and that the applicant’s prolonged stay in Australia was motivated by factors other than study, most likely employment, as he had a quite consistent pattern of employment.

11. On 29 June 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 26 July 2018. That invitation among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

12. On or before the hearing, the Tribunal received documents from the applicant including:

    ·evidence of the applicant’s identity, family relationships, parental financial and property assets the applicant will inherit;

    ·evidence of his current and past academic study in Australia;

    ·a statutory declaration from the applicant, dated 19 July 2018;

    ·a copy of a decision of the Tribunal (differently constituted), affirming a decision to not grant a secondary applicant a Subclass 570 Student visa.

13. The statutory declaration stated:

    1)I first arrived in Australia on a student visa with my partner, [name and date of birth provided] on 17 November 2008, I apply for a student visa to the department of Immigration and border protection to study Bachelor of Business (Management and Finance) at King's Own Institute. Sydney NSW Australia but my visa was refused by case officer.

    2)Talking about my partner's qualification; she came to Australia on 17 november 2008 at Victory Institute to study Diploma of Hairdressing. She started feeling sick when she started to study when we checked with a Doctor, it had been found out that she had a chemical reaction. This is the reason she changed the course. She changed course to Business and started to study Diploma of Business at Central College on October 2009 as soon as she realised that hairdressing is not the right subject for her. When she started to study Business Administration, everything went well and she studied smoothly.

    3)She completed her Diploma of Business on 06 October 2010, Bachelor of Accounting on 21 June 2013 from Universal Business School Sydney. Dechya wished to continue her study for a refined career and joined Master of Business Administration at Holmes Institute which was completed on 12 February 2015. And Currently she is studying Diploma of Leadership and Management to enhance her skill.

    4)She have 10 years experience in hospitality industry and 1 year experience of Accounting. We feel that being qualified in Master in Business Administration and 10 years experience in hospitality industry she will get good opportunity to work in Nepal.

    5)My partner applied for a temporary Graduate Visa after completing her master's degree and it was granted on 08 July 2015. During my stay in Australia on a temporary graduate visa, I had an opportunity to work at Costco Wholesale supermarket located at Parramatta, Sydney and had an experience of working in a fast paced retail industry. This work has initiated a desire in me to get more knowledge regarding business management I have gained some hands in skills about retail industry and I want to use these experiences on my own business when I return back to Nepal.

    6)I have completed Diploma of Business Administration from Pacific College of Technology, Sydney on November 2013. Immediately when we lodged our Subclass 485 visa, I started to study Bachelor of Business (Management and Finance) which is just completed from this semester. Currently, I have received a new offer letter for Master of Professional Accounting which is going to start from this July. I have also paid the portion of fee of for my master. Copies of which are attached.

    7)As I request COE to my collage to make my case strong but my collage didn't provide me COE saying that I am at AAT case so they provide me a current offer letter of Master of professional Accounting. My collage informed me that they can provide a current CoE upon request by AAT or Department.

    8)Australian qualification is highly recognised worldwide and Australia is one of the top three best education destinations in the world. I believe that gaining higher sector Australian qualification will definitely update my current knowledge and skills. I decided to enrol in Bachelor of Business (Management and Finance) and Master of professional Accounting so that after returning back to Nepal, we will have all the knowledge and skills required to run a business successfully.

    9)The only purpose of my visa application to the Department of Immigration and Border protection was to grant a temporary student visa for me to complete my Bachelor of Business degree and Master degree, Since I have completed my Bachelor Degree and I would like to assure the Department that, after the completion of this course, me and my wife will be returning back to Nepal to start our new life.

    10)I have attached all the documents such as my completion letter of Bachelor of Business (Management and Finance) as provided by my college and the current enrolment letter of Master of Professional Accounting, financial evidences,

    11)About my family background, I am the only son of my parents and I have lots of roles and responsibilities towards my family. My sister is in USA, she is well- settled over  there with her family and hold US citizenship, My parents are getting older and I am the only person to look after my family, our property in Nepal. I am family oriented person and I am here just to get quality education. On the other hand, my partners father had passed away on 14 March 2015. At the moment her mother wants her to be in Nepal because she would like to spend a time with us_ But she is also worried about our career that's why she asked us to complete my study to get better opportunities in Nepal.

    12)We applied for Temporary Graduate 485 visa because I can work full-time as same time I can study as well.

    13)If we had plan to apply Permanent Residence we could have applied after 2013 when my wife completed her Bachelor of Accounting and Master in Business Administration because we ate eligible to apply Permanent Resistance. We are here just for the quality education for both of us. We never thought about staying here permanently.

    14)We came Canberra because I got transfer from Costco Sydney because I saw more opportunities here in better position and my wife also get good job as Food and Beverage Attendant in Virgin Lounge Canberra Airport. After spending few years in Sydney, we preferred to live outside the city for sometime

    The Hearing

14. The Tribunal raised with the applicant that the matter before it is whether he meets the requirements of cl.500.212(a). The Tribunal outlined the clause, the relevance of Direction 69, and that it needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

15. The Tribunal drew the attention of the applicant to the concern raised by the delegate that he and his wife’s migration history displayed a pattern of their taking turns to apply as the primary applicant for Student visas, and the related concern he had an employment related economic motivation for maintaining his residency in Australia. In response, the applicant gave evidence that he is now the main applicant for a Student visa and that the Department refused his visa on erroneous grounds, namely that he did not study whilst he was a dependent on his wife’s Subclass 485 visa. He said he had continued to study for a Bachelor of Business during this period.  The applicant said he and his wife could have applied for permanent residency when his wife finished her courses in 2013 or 2015, but they did not, and this demonstrates that their motivation to be in Australia has been study and not for other reasons.

16. In relation to the delegate’s concern the applicant had not demonstrated he has maintained strong ties to his home country, the applicant said he is the only son in his family and that his elder sister resides in the United States of America.

17. In relation to the delegate’s concern the applicant had ceased study in the Bachelor of Business, so as to take up full time employment, whilst he was a dependent on his wife’s Subclass 485 visa, the applicant said he commenced full time work because he was told by a friend that he could do so.  He reiterated that he did not cease his studies.  He said his education provider told him a confirmation of enrolment (CoE) was not required for him to continue with his studies. The applicant said he completed his study in the Bachelor of Business in June 2018 and that following this he had, on 20 July 2018, applied for enrolment in a Master of Professional Accounting course.

18. The Tribunal asked the applicant about his claim he relocated to Canberra because this provided him with more opportunities through his employment with the Costco company.  He confirmed this was the case and that he and his wife made this move in August 2017.  He said his wife is now employed in a food outlet at Canberra airport.

19. In relation to his plans for his future, the applicant said he just wished to go back to Nepal and that, if he has a master’s degree qualification, he would have good future opportunities in his home country.  He said his wife already has a master’s degree and that he wants to go back to his family in Nepal.

20. The applicant gave evidence that he has no military service commitments in Nepal, nor concerns about returning there because of the political situation or civil unrest there.

21. The Tribunal drew the attention of the applicant to the GTE statement he provided to the Department with the visa application, where he claimed the only purpose of his application for the Subclass 500 visa in January 2017 was to complete his Bachelor of Business degree, and that he had provided an assurance that after the completion of this course, he and his wife would return to Nepal.  The applicant acknowledged that he made this claim and that it was a truthful statement.  He then gave evidence that it was not until after he finished the Bachelor of Business degree, that his wife discussed with him the benefits of his undertaking a master’s degree, so as to improve his future opportunities in Nepal.

22. The Tribunal drew the attention of the applicant to Paragraph 9 of the statutory declaration, dated 19 July 2018, he provided to the Tribunal with the review application, where he provides a near identical assurance as to his intention to return to Nepal on completion of a master’s degree and asked him why this assurance could be relied on, given he had not stuck by his previous assurance that he would return to his home country after completing the Bachelor of Business degree. In response to this comment the applicant said he had thought he would go back to Nepal after finishing the bachelor degree but that his wife convinced him that the bachelor qualification would not be sufficient for him to get a good job or promotion opportunities, and she introduced the idea and convinced him to undertake a master’s degree course.

    Evidence of the applicant’s wife (the second named visa applicant)

23. The applicant’s wife gave evidence the applicant is a genuine student and that she and him only came to Australia to get an education.  She said their initial focus was on her getting a tertiary education and that after she completed a bachelor degree he commenced a diploma level course.  She said that after she completed a master’s degree the applicant resumed his studies again.  She said the reason for their studies in Australia is so that she and the applicant have improved employment opportunities in Nepal.

24. In response to a question from the Tribunal as to when the applicant decided to study a master’s degree course in Australia, the second named visa applicant said that this was always the plan and that they had decided upon this plan before they came to Australia to commence their studies.   She said it was always the plan for both she and the applicant to get a master’s degree level of qualification in Australia.

    The applicant’s response to his wife’s oral evidence

25. The applicant told the Tribunal that his wife asked him to study in a master’s degree course so that his future career prospects would be better.

    Particulars of information put to the applicant pursuant to s.359AA of the Act

26. The Tribunal put particulars of information from the oral evidence provided by the second named visa applicant to the applicant pursuant to s.359AA of the Act, after first explaining to him this information would, subject to his comment and response, provide the reason, or part of the reason, for affirming the decision under review.  The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request. 

27. The particulars of the information put to the applicant were that the second named visa applicant told the Tribunal that she and he had agreed on a plan, before arriving in Australia, that they would study until they had both achieved master’s degree levels of qualification, whereas the applicant gave oral evidence during the hearing that the information in the genuine temporary entrant  statement he provided the Department with his visa application, where he provided an assurance he would return to Nepal after completing a Bachelor of Business degree, was truthful.  Further to this the applicant gave oral evidence that he had intended to return to Nepal after completing his bachelor degree, until convinced otherwise, by the second named visa applicant.

28. The Tribunal explained to the applicant that this information is relevant because the inconsistency between the evidence provided by the applicant and second named visa applicant raises a concern that their evidence is not reliable. This in turn raises the concern as to the weight that can be given to his claims and a concern as to whether the applicant is seeking to maintain his residency in Australia for reasons apart from study.

29. The Tribunal explained that if it finds he does not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the Student visa.

30. The applicant told the Tribunal he did not require any further time to consider his response and then said he just wants to complete his master’s degree, as it is already paid for.  He said he just wants to complete his studies.  

    The representative’s oral submissions

31. The representative told the Tribunal that there is documentary evidence available regarding the property assets held by the applicant's parents and other financial assets, which is not translated.  He asked for time to provide translated copies of this evidence following the hearing.  The Tribunal consented to this request and also asked for evidence to support the applicant’s claims to not have an economic incentive for maintaining their residence in Australia, including bank records and taxation returns.

32. On 9 August 2018 the Tribunal received further documents including: a further statutory declaration, bank and taxation records and evidence of his past and current academic studies.

33. The statutory declaration, dated 8 August 2018, stated:

    1)The reason behind my studying Master degree is to get qualified education and get better opportunities for job in Nepal.

    2)In 2008, we had plan to complete our master degree but always plans does not works. I am always attached to my family. In 2016, I plan to go to the Nepal after I complete my Bachelor. On that time my wife agreed on the decision because I had very bad home sick on that time.

    3)I was worried about my parents because I am the only son of my parents and they are getting older too. My father also gave me pressure to return home because they does not feel secure without me. Although I have one elder sister but she is married and settle in USA with her husband. On other side my wife father was suffered from last stage liver chirrosis on that time. Those situation makes us to drop out our plan to study Master degree and we decide to go back to Nepal after I complete my Bachelor.

    4)In the mean time, Dechya's father was sick, her mother was keep asking us to go back and stay together. This situation also influenced our decision to return to Nepal after my Bachelor degree.

    5)At this stage, our situation has been changed because my parents are visiting USA with my sister and they are happy to stay there for few months with my sister. Secondly, my wife's father also passed away now my wife and her mother are slowly adopting the situation.

    6)After my wife saw my academic performance she asked me to continue my Master degree and I also did some research on job requirement for Nepal. Master degree is essential to get good job. Now lam interested to complete my Master and get better job opportunities at Nepal.

    7)On the day of Tribunal my wife explained you about our plan from 2008 but she did not explain about whole changed that goes ups and down in our life. As you asked her 'Is that your plan from beginning to get Master degree of your husband", She replied yes which I cannot denied on that but only the difference is we had some difficulties suiation came across that's why our plans changes many times.

    8)As you know I was stress and got nervous on the Tribunal that's why I did not remember what we had planned for 2008 what I remembered was the recent conversation.

    9)As I was keen to my study. My subclass 485 visa was lodged on 20/04/2015, was granted on 08/07/2015 and was valid till 8 January 2017. I started my Bachelor degree on 16/03/2015, please refer to my starting date of my completion letter. Its clearly indicates that I started my Bachelor Degree before I lodged 485 visa. As indicated in my completion letter, I have completed 5 subjects in 2015, 6 subjects in 2016, 6 in 2017, 1 subject in 2018 and got credit for 6 subjects. I requested to KOI to provided additional evidence to prove my study during my sc485 visa, KOI didn't give me any other documents than transcript and completion letter. I have provided the CoE, academic transcript and completion letter along with this statutory declaration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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?

3. 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.

4. The Direction indicates that the factors specified should not be used as a checklist in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion but, rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole.

5. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

6. The Tribunal has considered the applicant’s study history, and in order to make sense of his claim that he continued his studies whilst a dependant on his wife’s Subclass 485 visa, contacted the relevant education provider, Kings Own Institute (KOI).  The education provider confirmed that the applicant, as he has claimed, maintained his study in the Bachelor of Business during periods in which they did not issue him a CoE, and that he successfully completed this course in July 2018.  KOI indicated the applicant has commenced study in a Master of Professional Accounting, again without that education provider issuing a CoE form. After considering this information, the Tribunal is satisfied the applicant did not cease his studies whilst a dependant on his wife’s Subclass 485 temporary work visa and has placed some weight on there not being an apparent significant gap in his studies.

7. The Tribunal is, however, concerned that the applicant and his wife have provided inconsistent evidence in relation to the applicant’s study intentions, by providing quite different evidence as to when the applicant decided to study a post graduate master’s degree in Australia, thereby extending the parties intended residency in Australia for a considerably longer period of time. The Tribunal is not satisfied that the applicant has provided a plausible explanation for the inconsistency in the evidence on this issue.  His initial response, when the inconsistency in the information was put to him provided no credible explanation for why he assured the Department he would return to Nepal after completing the Bachelor of Business, and why he told the Tribunal he had every intention to do so until his wife suggested he undertake a master’s degree, which was after he completed the bachelor degree in 2018, whereas his wife gave clear evidence that the applicant had an intention to study a master’s degree prior to coming to Australia in 2008. The Tribunal is not persuaded by the applicant's subsequent submissions that in effect both statements are correct and that he had an initial goal to achieve a master degree, which he then modified, and more recently modified again so that his goals reflected those he had set in 2008.  Whilst acknowledging people’s circumstances change in response to all sorts of factors, the Tribunal does not find this explanation for the inconsistency in the evidence persuasive. In relation to the applicant’s study intentions, the Tribunal is satisfied that the applicant has enrolled in a Master of Professional Accounting program in order to prolong his and his wife’s residency in Australia for reasons other than study, and has placed some weight on this finding.

8. The applicant has provided only generalised evidence as to why the current post graduate accounting course is necessary for his future employment options in his home country.  The Tribunal acknowledges that post graduate qualifications can improve a person’s future employment options.  However, due to the lack of any clearly researched or articulated future employment or business goals for how he will apply his qualifications and extensive Australian employment experience in Nepal, the Tribunal is not satisfied the applicant has provided persuasive evidence in relation to this issue and has placed some weight on this finding.

9. The Tribunal has considered the applicant’s claim he does not have an economic incentive for maintaining his residency in Australia since November 2008.  In support of this claim he contends he has a future entitlement to part of his parent’s estate in Nepal, which consists of financial and property assets.  The Tribunal accepts this claim, but is not satisfied that this in and of itself establishes the applicant does not have an economic incentive to maintain the household income he and his wife have derived from employment in Australia over the past nine and a half years.  A review of the employment income earned by the applicant and his wife in recent years shows that in the 2015 income year they cumulatively earned $77,345, in the 2016 income year $79,166 and in the 2015 income year $78,603. The Tribunal is satisfied these employment earnings are higher than the applicant and his wife were earning in their home country prior to coming to Australia, and higher than they would likely earn at the present time for comparable work in the retail sales and hospitality areas.

10. It is apparent the applicant made a significant choice to move from Sydney to Canberra in or around April 2017 for employment related motivations, when he was offered work with Costco in the ACT. The Tribunal accepts it was open to the applicant’s wife to seek pathways to permanent residency in Australia after she completed courses she has previously studied since her arrival in Australia.  The Tribunal notes that permanent residency is not the only reason or motivation an applicant may have for seeking to maintain their residency in Australia on temporary visas. The Tribunal is not satisfied the applicant's wife’s employment in the hospitality sector provides her with the opportunity to significantly consolidate her experience as an accountant with a post graduate MBA.  It rather appears consistent with her employment pattern over the past ten years in Australia and ads weight to the Tribunal’s concern that the applicant and his wife have an employment related economic incentive to maintain their residency in Australia. The Tribunal has placed significant weight on this finding.

11. The Tribunal accepts that neither the applicant nor his wife has military service requirements in their home country, nor concerns about the political situation, or civil unrest there, which may provide an incentive for them to wish to not return to Nepal.  The Tribunal accepts both the applicant and his wife have family ties and familial responsibilities in Nepal.  However, the Tribunal has noted the applicant's reticence to return there to date, despite requests from his parents to do so.  The Tribunal notes this familial pressure has diminished somewhat due to his parents currently staying with his sister in the United States of America.  The Tribunal is satisfied the parties’ familial ties to Nepal provide them with an incentive to return there at some stage.  The Tribunal has, however, placed limited weight on this evidence as it is not persuaded any such incentive is pressing, such that it constrains the applicant from seeking to maintain his residency in Australia in the current and medium term future for economic reasons.

12. In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant has recently enrolled in a further post graduate degree which will further extend his time in Australia, he has stronger family ties in Nepal than Australia, that he has successfully completed a Bachelor of Business degree and all the other matters he has raised.  However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

13. The Tribunal is therefore not satisfied that the applicant is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

14. 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).

15. 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.

    The second named visa applicants

16. 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.  A member of the family unit is defined in r.1.12 of the Regulations, and includes spouse or de facto partner of the family head, or a dependent child or relative of the family head or spouse of the family head, who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

17. As the Tribunal does not accept that the applicant satisfies the primary criteria, the second named visa applicants are unable to meet the criteria because they are not a member of the family unit of a person who satisfies the primary criteria in cl.500.212.

    DECISION

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

    David Barker
    Member