SHRESTHA (Migration)

[2017] AATA 2251

SHRESTHA (Migration) [2017] AATA 2251 (26 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MAHESH SHRESTHA

CASE NUMBER:  1614664

DIBP REFERENCE(S):  BCC2016/1868556

MEMBER:Penelope Hunter

DATE:26 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 October 2017 at 5:01pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Intention to stay in Australia temporarily – Lack of academic progress – Relevance to employment – Genuine interest in study

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.223

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 27 May 2016. In his application the applicant sent out that he proposed to undertake an Advanced Diploma of Business with course dates from 23 May 2016 to 22 October 2018.

3. In support of his application the following information was provided to the Department;

   i.Letter from Carrick Higher Education dated 3 April 2012 confirming the applicant had successfully completed a Bachelor of Accounting, and academic transcript. The commencement date was 21 March 2011 and completion date was 4 March 2012.

   ii.Certificate of completion Advanced Diploma of Accounting, Australian Institute of Commerce and Language issued 5 January 2011, letter of confirmation of attendance, and official transcript.

   iii.Letter of submission.

4. In his letter of submission her dressing the genuine temporary entrant criterion dated 7 July 2016 the applicant set out the following information;

   i.He was granted his initial student subclass 572 visa on 25 June 2009 and arrived in Australia on 19 July 2009. Since then he was granted a subclass 573 visa on 5 April 2011 which was valid until 4 May 2012.

   ii.Between 2009 2012 he completed the following courses;

   ·     2009 Advanced Diploma in Accounting

   ·     2011 Bachelor of Accounting

   ·     2012 Diploma Business

   iii.The applicant acknowledged that during 2012, a Confirmation of Enrolment (CoE) in a Diploma of Information Technology and two CoEs in an Advanced Diploma of Network Security were cancelled. The applicant that submitted that on commencement he found his study in IT too difficult and decided to transfer to Business Administration and Management in 2012.

   iv.The applicant acknowledged that he was granted a previous student visa on 11 May 2015 and his enrolment in the Advanced Diploma of Business was cancelled by his education provider, on 4 August 2015, due to cessation of his studies. His claimed that last day of study was on 22 June 2015 and he undertook no further study due to an earthquake in Nepal which had affected his meet immediate family. The applicant claimed he was too distressed to continue his studies, although he attempted to commence an Advanced Diploma of Business in May 2015.

   v.The applicant acknowledged the Department of records that said he had been in Australia for 2462 days in since his arrival and offshore for only 42 days. The applicant set out he had last left Australia in November 2013. The applicant submitted that he returned to Nepal in 2013 due to medical reasons for treatment and other than this he was not able to afford to travel to his home country even after the earthquake in 2015.

   vi.With this visa application the applicant submitted he was seeking to undertake the course he was unable to complete in 2015 due to his distressed reaction to the earthquake in Nepal. He also wished to upgrade his knowledge of business by completing the Advanced Diploma of Business. He claimed that the course was relevant to his employment background in the hospitality sector and he was seeking to improve and develop his managerial skills in hospitality sector.

   vii.The applicant was committed to returning to Nepal at the conclusion of the current course. His immediate family have finances in terms of property and funds. His father was a government court officer who was now retired. He also had strong family and social ties including his parents, brother and extended family.

   viii.The applicant submitted that the type and level of course available in his home country was not compatible with the Australian standards. He chose his College, Hamro College of Bondi, because the teaching staff were of Nepalese culture and bilingual in Nepalese and English.

5. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

6. The delegate decided to refuse to grant the visa on 26 August 2016. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student. In their decision, a copy of which the applicant has provided to the Tribunal, the delegate set out the following issues of to support that finding;

   i.Provider Registration and International Student Management System (PRISM) records set out the applicant had been enrolled in the following courses;

course code	Name	Start	End	Status
80177A51	Advanced Diploma of Business	23 May 2016	22 October 2018	Studying
7392D092	Advanced Diploma of Network Security	22 June 2015	30 March 2016	Cancelled
7100DA39	Advanced Diploma of Network Security	30 March 2015	30 March 2016	Cancelled
5F3C0990	Advanced Diploma of Management	30 February 2014	3 February 2015	Finished
5E884032	Advanced Diploma of Management	3 September 2013	30 September 2014	Cancelled
542B4270	Diploma of Business Administration	13 August 2012	13 August 2013	Finished
518DB335	Diploma of Information Technology	21 May 2012	21 November 2013	Cancelled
468D4580	Bachelor of Accounting	20 March 2011	4 March 2012	Finished
34319928	Advanced Diploma of Accounting	20 July 2009	14 January 2011	Finished

According to these records the applicant had undertaken numerous courses in the Vocational Education and Training (VET) sector and he did not appear to have a clear study path. The applicant’s last course, the Advanced Diploma of Network Security was cancelled by the education provider on 4 August 2015 as the applicant had failed to enrol in term three of the course.

ii.Since completing his Bachelor of Accounting course in March 2012, the applicant appears to have regressed in his studies having only enrolled in courses in the VET sector.

iii.The applicant had submitted he discontinued the course in IT as it was too difficult for him, yet he very enrolled in an IT course three years later and also did not complete this course.

iv.The applicant was not enrolled in a course of study for a period of 11 months, despite several reminders from the education provider.

v.The applicant states that the earthquake in Nepal had caused him distressed however there was no evidence the applicant discussed his situation with the education provider to request to deferral or sought any advice from the medical profession. Rather the applicant remained onshore and chose to study. The applicant’s distressed did not appear to have effect on his ability to work.

vi.Each course of the applicant has been enrolled in appears to have little or no relation to the hospitality industry. Little weight was given to the claim that his current course was an advancement of his previous studies and relevant to his employment background.

vii.The applicant had only travelled outside Australia and one short occasion since his arrival in July 2009. He was single had no children and brother and extended family Nepal who are able to care his parents.

viii.The applicant enrolled his course in 27 May 2016 and applied for his course on the same day, only three days before the expiry of his last 572 visa on 30 May. It therefore appeared the applicant commenced studying after 11 months for the purposes of visa application.

1. The applicant appeared before the Tribunal on 18 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepalese and English languages.  The applicant was represented in relation to the review by his registered migration agent.

2. At the hearing the applicant provided the Tribunal with a copy of a letter of offer, dated 29 September 2017, in Diploma of Leadership and Management at Sydney City College. The applicant told the Tribunal that he was awaiting a positive outcome from the Tribunal before he proceeded to enrol. At the hearing the Tribunal questioned the applicant about his study history, proposed course and career intentions. He also discussed with the Tribunal his circumstances in his home country and in Australia, the issues of concern for the delegate and other relevant matters. The applicant confirmed that he was aware of the reasons that the delegate refused his visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

5. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

6. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

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

8. Having considered the applicant’s claims against all the factors specified in Direction 53, 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.

9. The applicant told the Tribunal that his previous enrolment was cancelled after the Department rejected his application for the visa. He cancelled the enrolment because his agent told him that while he was on a bridging visa he had to await the Tribunal review. According to his evidence at the hearing, he had not yet started the course. The agent for the applicant, present at the Tribunal hearing, was unable to corroborate this submission. The applicant also had been in Australia since 2009 on various student visas and associated bridging visas, he had some experience with the Australian student visa system and it is not accepted that he was totally reliant upon his agent. If the applicant was genuine in his intention to study the Tribunal considers he would have continued with his course. When asked why he had changed education providers, the applicant gave evidence that his agent just told him to go there. The applicant exhibited to the Tribunal little engagement with his study proposed study. He did not know the modules contained in his course, or what subjects he would commence first. The Tribunal considered that the applicant had only obtained enrolment for the purposes of the visa, rather than any genuine interest in study. This was also borne out by the further evidence of the applicant.

10. The Tribunal asked the applicant why he now wished to undertake a course in Leadership and Management, the applicant gave evidence that his previous education was in accounting and in the future he wanted to have something of his own and do good management. The applicant confirmed that he had not obtained any work or experience in accounting since obtaining his qualifications, he had been working as a cook. The Tribunal questioned the applicant has to why he had not originally enrolled in the course in Leadership and Management as this was the skill he was lacking. The unsatisfactory explanation for the change in course provided by the applicant was that it was “something new that he had found about”. The Tribunal was not satisfied as to the relevance of the course to the applicant’s future.  In response to further questioning he claimed that he lacked leadership and management capacity, however other than this the applicant could not explain satisfactorily to the Tribunal why he had enrolled in his course. The applicant claimed that once he obtained a good education he would return to his home country. It was considered that the applicant’s existing qualification already provided him with a good education, particularly his Bachelor degree in accounting, and that the applicant was regressing in his education through his enrolment in the VET sector. Furthermore the applicant had since March 2012, obtained numerous enrolments in the VET sector, in short inexpensive courses, with limited evidence of completion. This indicated to the Tribunal that he was continuing enrolment for the purposes of maintaining ongoing residence in Australia rather than any genuine interest in study. 

11. When asked about the last course he successfully completed in Australia the applicant referred to his Diploma of Business, the certificate of completion for which he had available at the hearing. This was issued in August 2013. The applicant confirmed that he had not completed any courses since this date. The Tribunal did not consider that this was a reasonable level of completion as it is expected that a genuine student would maintain enrolment, study and progress academically.

12. The applicant attributed his lack of progress to concern for his family following the earthquake in Nepal in April 2015. However the applicant did present any corroborative evidence regarding the impact on his family. The applicant claimed he was very stressed for 6 – 7 months. He did not return to Nepal at this time. The applicant was asked about any treatment for his mental distress, the applicant said that he tried meditation and spiritual study to improve with self-control. The Tribunal was not satisfied that the impact of the earthquake in Nepal in April 2015, can account for the applicant’s lack of progress in his studies since August 2013.

13. The Tribunal also discussed with the applicant the finding by the delegate that he had not studied for 11 months prior to the current visa application. The applicant claimed that this was due to an offer by his former employer to sponsor him for a permanent visa as a cook. It told the Tribunal it was an opportunity for him to work and to not have to go to college and he would prefer that. The applicant said that he needed some time to prepare documents relevant to the visa application with his employer as his qualifications were in accounting. Prior to apply for the current student visa he had not been studying because he was going to get this visa. He gave evidence that he had proceeded to lodge this application, however before it was approved his employer sold the business. At this time the applicant’s existing student visa had 2 weeks before it expired so he decided to return to study. The applicant is now working for a different restaurant as a cook. The applicant’s decision not to maintain enrolment and comply with the conditions of his previous student visa does not weigh in favour of granting the current visa. Furthermore, the clear expression by the applicant of his preference for a different type of visa where he did not have to study demonstrates to the Tribunal that the applicant remains in Australia for the purposes of work, rather than a genuine interest in study and academic progress.

14. The applicant was asked what work he intended to do in his home country and he claimed that he wanted to start his own business. When asked to explain what type of business he intended to operate the applicant gave evidence that whatever he would do it would not be for profit, but that it would be for the existing betterment of society. The Tribunal considered that the existing qualifications of the applicant would be sufficient for him start this career. However, the applicant claimed that he had come to realise that to undertake social work for the betterment of people, leadership and management skills were needed. When questioned as to what experience in work for the betterment of society had led him to this conclusion the applicant stated that he had not yet had this opportunity but that he had a good relationship with everyone that he met. The Tribunal again was not satisfied as to the relevance of the proposed study for the applicant in this future career.

15. The applicant claimed that his ties to Nepal were strong through his family. It is acknowledged that he has his parents, brother and extended family in his home country. However, as noted by the delegate, He was single had no children and brother and extended family Nepal who are able to care his parents. The applicant has made only two short trips to his home country since his arrival in 2009. He has not demonstrated any significant financial ties to his home country. The Tribunal is not satisfied that the applicant has demonstrated he had sufficient incentive to return to his home country.

16. There is no evidence before the Tribunal that the applicant has any military commitments. Nor that there are any civil or political issues that would act as an incentive for him to remain in Australia.

1. There is no evidence before the Tribunal that the applicant has family in Australia or that he has entered in to a relationship of concern. However it is not the case that he has no ties to Australia. He has remained onshore since July 2009. The applicant did provided evidence to the Tribunal that he has friends from Nepal in Australia and that he has been living with them consistently for the last 5-6 years. It is expected that in this time the applicant would have developed social and community ties in Australia. The applicant also had a previous intention to remain in Australia and work as a cook. Given the disparity in income between Australia and Nepal and the applicant’s stated intention to work, not for profit in his home country, the Tribunal considers that there is greater potential for remuneration for the applicant in Australia.

2. In assessing the totality evidence the Tribunal finds that the applicant is using the student visa program to maintain residency in Australia rather than a genuine interest in study and academic progress.

3. Overall, after considering the circumstances of the applicant overall including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant or entry and stay as a student. The Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily. Accordingly, the applicant does not meet clause 572.223(1)(a).

4. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   Penelope Hunter
   Member