Thapa (Migration)

[2019] AATA 539

Thapa (Migration) [2019] AATA 539 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raj Thapa

CASE NUMBER:  1619725

HOME AFFAIRS REFERENCE(S):           BCC2016/2847331

MEMBER:Meredith Jackson

DATE:21 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 21 February 2019 at 4:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit – genuine temporary entrant – poor study record – demonstrated interest in remaining in Australia permanently – previously applied for a 457 work visa – spouse wants to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.312

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 7 November 2016 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 for the visa on 27 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4.    The applicant appeared before the Tribunal on 24 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Saru Maharjan.

5.    The applicant was 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies the secondary criteria as a member of the family unit of a person who holds a Student visa (cl.500.312).

Genuine applicant for entry and stay as a member of the family unit (cl.500.312)

8. Clause 500.312 requires as follows:

The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, because:

(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)the applicant’s circumstances; and

(ii)the applicant’s immigration history; and

(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)any other relevant matter; and

(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

9. In considering whether the applicant satisfies cl.500.312 (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.

1. 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.

Summary of the applicant’s case

1. The applicant, Mr Raj Thapa, is 24 year old citizen of Nepal who first came to Australia on a subclass TU573 Student visa, which, at the time, facilitated access for persons from certain countries to study in Australia at higher education level. At the time, Mr Thapa intended to study a Diploma of Hotel Management and a Bachelor of Business. He did not do those courses, instead deferred and enrolled in a low-level vocational course, a Certificate IV in Commercial Cookery, which he also deferred. He then travelled overseas, before returning in February 2015 to complete a Diploma of Business. This was followed by a degree-level course enrolment, but this course was cancelled by his provider for non-commencement of studies. On 27 August 2016, three days before the expiry of his initial Student visa, he applied for a second Student visa that is the subject of this review. He did so on the basis that two weeks’ earlier he had married the secondary applicant, Ms Saru Maharjan, a Student visa holder, and became a member of her family unit. Mr Thapa works part-time in a pasta restaurant and has not studied since May 2018. In the five and a half years since arriving in Australia, he has studied for approximately two years and seven months.

Submissions and oral evidence

1. Mr Thapa made documentary submissions prior to the hearing, including:

   a.The delegate’s decision;

   b.Academic records and Certificates of Enrolment for himself and his wife;

   c.Financial record;

   d.Medical information about his mother’s health issues in 2016;

   e.Personal submissions;

   f.The parties’ marriage certificate for their marriage on14 August 2016;

   g.Visa documentation for the applicant’s wife.

2. The Tribunal has considered the documentary evidence before it and heard oral evidence.

3. At the Hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about him held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision.

4. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal asked the applicant if he wished to seek further time to consider it. The Tribunal explained that the relevance of the information was that it helped the Tribunal decided whether he was a genuine temporary entrant or whether he was hoping to remain in Australia. The applicant said he was prepared to comment on the information immediately after it was read to him and said he understood it and why it was relevant to his case.

5. Mr Thapa confirmed that the PRISMS record was correct.

6. The Tribunal asked Mr Thapa his reasons for enrolling in and not completing several courses, including those he came to Australia to pursue.

7. Mr Thapa stated he is a genuine student and if he were facing his first diploma now, he could do it, but he was not up to it at the time. He acknowledged that his study record has been poor, but claimed this may be attributed to several things: his immaturity when he arrived in Australia at age 18; the pressure of study; his mother having suffered a major health issue; financial hardship; and losing track of his study commitments.

8. Mr Thapa claimed that his life changed after he met his wife, Ms Maharjan, and after marriage he decided to commit to supporting her studies.

9. The Tribunal said the department had expressed concern about his study record and the timing of the marriage, having noted that the applicant had applied for a dependant visa three days before the expiry of his visa. It had also noted he had breached visa conditions of maintaining eligibility and continuing to study. The Tribunal asked if he understood such issues might also raise some doubt for the Tribunal about his reasons for wanting a Student visa.

10. Mr Thapa said when he was “doing bad things” he had a lot of stress and his now wife was the only one there for him. He decided to marry her when he found out that “three days, or two days, or one day before the visa” he could become a dependant visa holder. He stated: “I talked to some lawyers and they said you can do it, you don’t have to do your Bachelor’s for now. So I thought: ‘let’s do it’.”

11. Mr Thapa claimed he now wishes to support his wife and study himself, and, having completed only vocational courses to date, wants to do a Bachelor degree. He claimed that after he finishes the course, he will return home to Nepal to work in major restaurants or perhaps start a restaurant of his own. He claimed that all he wants is an opportunity for his wife and him to complete their studies so they can return home, support his family and pay them back.

12. The Tribunal raised with the applicant that he had stated in evidence both that he wanted to support his wife while she studied, and that he would be the priority student in the family. The Tribunal asked which of these two notions applied. Mr Thapa responded that he and his wife had discussed this and it would be him studying first, because he wished to study a Bachelor degree and go back to Nepal. This would take him around two and a half years.

13. The Tribunal asked the applicant about his family circumstances and any reasons to remain in Australia rather than return to Nepal. Mr Thapa said his mother and father were in Nepal but he had a sister in the United States. The Tribunal asked if he had any intentions of remaining in Australia long-term, and if so, whether he had applied for any permanent visas. He said after he met his wife he had applied for a subclass 457 Temporary Work visa, and had gone to Indonesia to apply, but had now lost his restaurateur sponsor, so was planning to study before going home to open a pizza and pasta restaurant. He felt that after he went home he would have a good life and a good income.

14. The Tribunal also heard evidence from Ms Maharjan, who indicated that she wanted to complete her studies and that her husband wanted to study a Bachelor of Business.

15. The Tribunal said it might have a concern that the two were trying to extend their stay in Australia for reasons other than study, and that Mr Thapa had confirmed during questioning that he had applied for a work visa that could lead to permanent residency here.

16. The Tribunal asked Ms Maharjan how long she wanted to remain in Australia, and she responded that she wanted to finish her Bachelor degree in professional accounting over one and a half years. When asked if she would then be going back to Nepal, Ms Maharjan stated: “I think I want to stay here, because I want to do some professional job over here because in Nepal it is very hard to get a professional job in accounting.”

17. The Tribunal then asked if she intended to remain in Australia given that her husband had indicated to the Tribunal he would be going to Nepal, and she responded: “I love Australia, but if I get an opportunity in Nepal I would definitely go there”.

18. The Tribunal then asked what plans the two parties had for their future as a couple. Ms Maharjan stated: “As a couple, I would think first I finish my degree then he finish his Bachelor, because we can’t afford both to study, so first I finish my Bachelor, then after he will finish his Bachelor.”

19. The Tribunal said to Mr Thapa that it wished to put to him formally some information from his wife’s evidence that, subject to his comments or response, would be the reason or part of the reason to affirm the decision under review. The Tribunal said it had not made up its mind on the information, but it would explain it to him and invite him to comment. He was entitled to seek additional time to consider the information. The Tribunal said the information concerned whether he was a genuine temporary entrant and it might cause the Tribunal to doubt that was the case, and that if the Tribunal were to reach this conclusion it would affirm the decision under review.

20. The Tribunal said to Mr Thapa that his wife had indicated in evidence that she would prefer to stay in Australia, rather than return to Nepal. The Tribunal said the Tribunal might have a concern that one or both of the parties were intending to remain in Australia.

21. The Tribunal said this might also have a further concern given that Mr Thapa had stated he had in the past applied for a visa that leads to permanent residency and that seemed to indicate that he wanted to stay in Australia. Mr Thapa was invited to comment.

22. Mr Thapa requested time to consider the information. The Tribunal granted him additional time.

23. After several minutes, Mr Thapa responded with the following statement:

    “All I can say right now is whether we are a couple or not, people have their own perspectives in life, and while we are a couple we have our own motives for things to do in life. As far as I know about her, once she get education levels, she will get more confident and she can do anything anywhere in the world and she can definitely change her mind about leaving Australia. Of course everyone loves living in Australia, this is the best country now, everyone feels this is a holiday to stay for 4-5 years, but once she gets that optimum education levels I think she will definitely change her mind after developing confidence. So all I can say right now is we just want to finish our degrees and in the past I breached some conditions because of some circumstances and now I am getting the result, all I can say not we need a chance to prove ourselves and go back and do something there.”

Conclusions

1. The Tribunal has weighed Mr Thapa’s evidence against the factors specified in Direction 69. In particular, the Tribunal noted Mr Thapa’s study progression, which he admits is poor; and noted the responses of both parties when asked if they want to remain in Australia and what the factors were that would encourage them to seek to stay. The Tribunal concludes as follows:

   a.Mr Thapa has demonstrated an interest in remaining in Australia permanently by having applied for a 457 Work visa, and having travelled to Bali to do so. This level of planning indicates to the Tribunal Mr Thapa is hoping to secure a visa that would allow him stay on in Australia for as long as possible. This is also demonstrated by Mr Thapa having admitted that he sought legal advice prior to the expiry of his Student visa about becoming a dependant and being allowed to stay without studying, and then decided “let’s do it”, and married his wife less than two weeks before his visa expired.

   b.Ms Maharjan has demonstrated a clear interest in remaining in Australia, in that she has expressed in sworn evidence her preference to remain here and work as an accountant after graduation. The Tribunal accepts that on further questioning from the Tribunal, she stated that if an opportunity arose she would definitely “go there”, meaning to Nepal. However on balance the Tribunal considers her statements on this aspect weighed more heavily towards remaining in Australia than going home. Adding further weight to this, the Tribunal notes, Mr Thapa indicated in his statement, which he considered for some minutes before making, that his wife, once qualified, would “change her mind” about not wanting to return home.

   c.Mr Thapa has demonstrated an interest in using the Student visa program to remain in Australia. The Tribunal notes Mr Thapa works part-time in a pasta restaurant and has not studied since May 2018. Further, in the five and a half years since arriving in Australia, he has studied for approximately two years and seven months. His study record is poor on his own admission, and as his PRISMS record confirms. He does not dispute the PRISMS record. He puts his low attainment down to several adverse factors, which range widely and are detailed earlier in these reasons. The Tribunal has considered the factors he has cited, and is not convinced they were extraordinary or unlike those experienced by many students studying successfully overseas.

   d.The Tribunal concludes that Mr Thapa has not studied progressively and successfully because his main aim has not been academic attainment, it has been remaining in Australia. He came to Australia through a streamlined visa processing regime, but did not study what he nominated, and seemingly breached his visa conditions. Despite this, he remained in Australia, studying for less than half the time he has been here. He has found ways to use the Student visa program to extend his stay, and the Tribunal, at the time of this decision, does not have before it convincing evidence that his application for a Student dependant visa, made ten days after he married his wife and three days before his visa expired, is anything other than another example of this.

   e.Mr Thapa has fewer reasons to return home than to remain in Australia. Despite questions about his future, Mr Thapa has not put before the Tribunal a detailed or well-researched plan as to his study and career intentions. He has a wife who wants to remain here. He has previously applied for a visa that leads to permanent residency. He has few ties to Nepal other than his parents living there. His relative opportunities in Australia compared with his limited economic circumstances in Nepal (which he does not acknowledge but which his wife has described in evidence and which she claims motivate her to remain in Australia), leads the Tribunal to conclude Mr Thapa does not have a settled plan to return home; rather he wishes to remain here.

2. In summary, the applicant has not put before the Tribunal convincing evidence that he satisfies the secondary criteria, and the Tribunal concludes he is not a genuine applicant for entry and stay as a member of the family unit of a person who holds a Student visa.

3. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.312.

4. The Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

DECISION

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

Meredith Jackson
Member