Tribunal: Member Michael Edgoose
A delegate of the Minister for Immigration and Border Protection refused the applicant’s Student visa. On 8 March 2018, the Administrative Appeals Tribunal affirmed the decision.
Clause 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 sets out the criteria a decision maker must consider when considering whether a student is a genuine applicant. It broadly provides that the decision maker must be satisfied the student genuinely intends to stay in Australia temporarily, having regard to the applicant’s circumstances, immigration history and any other relevant matter. In considering whether the applicant satisfied these criteria, the Tribunal was required to have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under section 499 of the Migration Act 1958. This Direction guides decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfied the genuine temporary entrant criteria.
The applicant was from Nepal and first arrived in Australia on 24 March 2012 on a student visa. The applicant applied for another student visa on 18 March 2016 and the delegate refused to grant that visa on 16 March 2017. The applicant appealed to the Tribunal. The Tribunal advised the applicant of its concerns that he had enrolled in 13 courses during the almost 6 years he had been in Australia and had not completed 5 of them. This indicated a lack of academic progress that was not consistent with the applicant being a genuine student staying in Australia temporarily. The applicant claimed he previously had poor study habits and this had been the reason for his lack of continuous academic progress. The applicant claimed that in 2016 he realised his passion to study in the areas of commercial cookery and hospitality management. He provided copies of the three certificates he had completed in this field as well as an International Student Offer and Acceptance of Agreement for a Bachelor of Tourism and Hospitality at Academies Australasia Polytechnic to start in 2018. The applicant claimed the reason for his lack of academic progress and poor study habits was a result of the Nepal earthquake in 2015, which affected his family and friends including the loss of several relatives. The applicant claimed that his future plans were to return to Nepal and to open up his own international hotel and tourism business with his parents.
The Tribunal considered that the applicant’s non-completion of courses and lack of academic progress was not the behaviour of a genuine student or a genuine temporary entrant. The Tribunal found that the applicant had little incentive to return to Nepal having made significant ties and gaining financial support through his uncle in Australia. The Tribunal had significant concern that the value of the study proposed did not lie outside Australia, but in the granting of further student visas for the purposes of continued residence in Australia. The Tribunal found that because the first sign of academic success was in 2017, the applicant was not committed to departing Australia and instead intended to prolong an already substantial stay in Australia indefinitely. The Tribunal considered that the economic disparity between Nepal and Australia was a real incentive for the applicant to remain in Australia. On the provided evidence, the Tribunal noted that the applicant was likely to earn as little as $3000 per annum back in Nepal, compared to earning $18 per hour at his current place of employment in Australia. The Tribunal noted that in the applicant’s claims concerning his future plans, he did not provide evidence of where the business would be located, the cost of the purchase of the land or existing business, the number of staff required and how the required capital would be raised or accessed in the future.
Having considered the above, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily for the purposes of study. Accordingly, the applicant did not meet Clause 572.223(1)(a) and the decision was affirmed.
Read the full written decision on Austlii.