1414591 (Migration)

[2016] AATA 3592

1414591 (Migration) [2016] AATA 3592 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kumud Koirala Khanal
Mr Suman Khanal
Master Swapnil Khanal

CASE NUMBER:  1414591

DIBP REFERENCE(S):  BCC2014/1609749

MEMBER:Tim Connellan

DATE:24 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 24 March 2016 at 3:33pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration 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 to the Department of Immigration for the visas on 1 July 2014. The delegate decided to refuse to grant the visas on 11 August 2014. 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).

3. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because having considered her immigration and study history, her ties with Australia and the other issues referred to in Ministerial Direction No 53, the delegate was not satisfied that the applicant intended to stay temporarily in Australia. .

4. The applicants appeared before the Tribunal on 2 separate occasions the first on 2 April 2015 and at a subsequent hearing on 8 March 2016 to give evidence and present arguments.

5. The second hearing was called because a decision had not been made after the first hearing.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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)     …

10. 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.

11. 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.

    The First Hearing

12. At the first hearing the applicant told the tribunal she had read and understood the primary decision, a copy of which she provided with her review application.

13. When asked to clarify why she believed her application had been refused, she provided a rambling answer that did not address the question leading the tribunal to a discussion about Ministerial Direction No 53 and the fact the delegate had found she was not a genuine applicant for entry and stay as a student in Australia temporarily.

14. She told the tribunal that before coming to Australia in September 2008 she had completed a Bachelor of Arts degree majoring in Mathematics and Economics and some hairdressing studies. She had worked in hairdressing in Nepal and wished to come to Australia to study hairdressing and gain skills in that field.

15. When she came to Australia she studied at Hales Institute where she completed an ELICOS before completing Certificates III & IV in Hairdressing and a Diploma of Hairdressing Salon Management. Having completed studies in hairdressing, she got a job as a nanny looking after 3 small children for approximately one year.

16. When asked why, having spent so much time studying hairdressing she would change direction and work as a nanny, after some hesitation she said she wanted to learn more skills.

17. Spending time with the children led her to think she would like to change career direction to work with children.  She did a Diploma of Business following which she completed Certificates III & IV in Children’s Services followed by a Certificate IV in Disability which she completed in July 2015. She then commenced an Advanced Diploma of Business which she was currently studying.

18. When asked why she had studied a Diploma of Business, she said it was on the advice of her agent who suggested it would give her more experience.

19. She said her interest became working with children with special needs, particularly children with learning and hearing difficulties. She said it would be better for her career if she could help children with special needs, so she studied a Certificate IV in Disability.

20. Having previously completed a Diploma of Business she was now studying an Advanced Diploma of Business which combined with her current work with children would enable her to go back and start a child-care centre business in Nepal.

21. She said that when the course was completed in March 2016, she would return to Nepal and start a business.

22. She said that after studying children’s services she got a casual job working with Good Start Early Learning Centres in suburban Adelaide where she worked sometimes on Wednesday Thursdays and Fridays.

23. She said she was engaged as a part-time casual and worked at the four childcare centres run by the business. She was effectively on-call and often covered for other staff. She said they were normal childcare centres and did not cater for special needs children.

24. The tribunal asked why, given her statement that it was her passion she had not, or did not work with special needs children. After a significant pause, she provided a rambling response saying that she was still new and learning.

25. When asked about her current plans, the applicant said she wanted to complete the course following which she would go back to Nepal and start a business in childcare.

26. She said she had gained a lot of knowledge which she wished to put into practice.

27. The tribunal discussed her enrolment history and asked why she had enrolled and pre-paid fees for a Diploma of IT which she never commenced. After an extended pause she provided a halting answer stating that all businesses need IT but then she had changed her mind and moved to Adelaide.

28. The tribunal told the applicant her enrolment and study history were relevant and were issues on which she had been put on notice in the primary decision where the delegate was concerned that her study included unrelated courses in which she had gained no employment. Also that her study plans had changed in recent times. The tribunal told the applicant that an ill-defined study path way raised the question of whether an applicant was a genuine student or seeking to use the student visa program to maintain ongoing residence in Australia.

29. The tribunal questioned why her plans had changed from her earlier statement that she planned to study a Bachelor’s degree followed by a Masters in Childcare Services while her current plans were to study Diploma level courses at the Vocational Education and Training Sector level. She provided no coherent answer.

30. When asked what value she expected from a Diploma of Business she said it would help her run a business in childcare.

31. Invited to comment, the applicant’s agent stated that the stress of the hearing had made it difficult for the applicant to express herself eloquently and accurately. He said she is an educated, intelligent person with ambition. She had studied a Bachelor’s degree in Nepal which had opened her eyes to opportunities in the future.

32. She decided to pursue hairdressing and came and studied for some years in that field before changing direction which he did not believe was unusual. He spoke of his own experiences and stated that people that gained different skills in different fields became unique people.

33. Regarding her thoughts on doing a Bachelor’s and a Master’s degree in the future he said he believed she was unsure as to what direction she might take. He said she could do such studies in Australia, online, in Nepal, in France or anywhere else working and continuing with her career.

34. He said that her proposed studies at diploma level added to her pool of knowledge.

    The Second Hearing

35. The tribunal reviewed the primary decision and the first hearing and enquired about the applicant’s current studies. She said she was currently studying an Advanced Diploma of Business scheduled for completion on 10 May 2016. The tribunal noted that at the last hearing the CoE for the same course showed a completion date of 5 March 2016. The applicant said she had deferred for a trip home.

36. She said at the end of her current course she thought she would do some more courses and the studies that would give her more knowledge.

37. The tribunal observed that her current plan was different from the last hearing when she had said she intended returning to Nepal at the end of her current course.

38. She said that if the courses she was looking to study were available in Nepal, she could return and study there, if not she would apply for further study here.

39. When asked what course or courses she was looking to study in the future, she said she would like to study early childhood. The tribunal observed that this was not related to special needs children. She responded that it would be good training for her and helping her with her chosen field of special needs in the future.

40. When repeatedly asked the name of the course she was considering studying, she was unable to provide an answer other than repeating it was special needs teaching. She said she needed to do research to see what courses were available.

41. She told the hearing that she was still working at Good Start Early Learning Centre in the same role she was in at the time of the last hearing. The tribunal confirmed that she remained employed on a part-time casual basis working at 4 different centres. She confirmed that Good Start was a normal early learning centre and did not specialise in special needs children.

42. The tribunal observed that while she had repeatedly claimed that her passion was working with special needs children; and her migration agent had made significant submissions about the role of working with special needs children, the fact was that for the last few years she had worked in an early learning centre and did not, and had never been employed to work with special needs children.

43. Regarding her family, she said her husband worked as a taxi driver and her 18-year-old son had recently finished secondary schooling.

44. She said on her return to Nepal she would open a business. When asked for details on her proposed business, she said it would be a special care needs childcare centre.

45. When asked about the source of finance to commence the business, the she provided a vague and rambling answer that included that her parents would provide support. When asked how much she believed it would cost, she said she believed it could be established for 20 lakhs (Nepalese Rupees) ($A25,000).

46. When asked what the money would be spent on, she required significant prompting however stated that there would be 5 teaching staff operating out of rented premises that would need to be fitted out.

47. She said she anticipated there would be 5 or 10 students. The tribunal observed that 1 to 1 or 1 to 2 child/staff ratio would make it difficult for the business to run at a profit. She provided no coherent response.

48. The tribunal observed that her responses indicated that her plans had not been thought through or developed and the idea of a childcare centre were nothing more than a dream.

49. During the two hearings she repeatedly stated that her work experience would provide her with the skills and experience to open her proposed business. Having never been employed to work with special needs children, the tribunal asked how her work experience would have provided such relevant skills. She responded that finishing her course would give her the required skills. The tribunal asked how completing a course in business could be relevant to providing skills related to working with special needs children. She provided no response.

50. The tribunal told the applicant it was concerned that her study path in unrelated courses raised concerns about her being a genuine student.

51. Having come to Australia with a Bachelor of Arts, majoring in mathematics and economics, and having studied and worked as a hairdresser, she came to Australia and spent a long while studying hairdressing. Having completed hairdressing studies, she decided to study business and then decided to study children’s services. Following those studies she returned to business studies. She also enrolled to study Information Technology

52. At the first hearing she stated that at the end of her current course she would return to Nepal and set up a business and now at the second hearing with her course nearing completion, she says she may choose to continue studying but is unable to say what course she wishes to study or where. It is apparent that she has done little or no research and has no set plan for future study.

53. The tribunal asked what had caused her to change her plan to return home at the end of her current course. She said she had not decided, but needed to consider whether she needed more skills experience and knowledge.

54. She said she believed the subjects she was thinking of studying were available in Nepal. The tribunal asked if that was the case why she would not study in Nepal. She responded that she would if they were available and that was something she needed to find out.

55. The tribunal again suggested that her responses indicated that a study plan was not something she had given thought to and she was responding to questions to which she had not given prior thought.

56. The tribunal observed that having been in Australia for seven and a half years, she had only returned home for a period of less than one month which indicated she does not have strong ties to Nepal.

    CONSIDERATIONS

57. The applicant provided answers to questions that were frequently hesitant and halting and lead the tribunal to the view that many of her answers were not considered, but responses to matters she had not previously considered.

58. The applicant came to Australia in September 2008 having completed a tertiary degree with a view to training in hairdressing.

59. Having completed her hairdressing studies, she gained employment not as a hairdresser or salon manager but as nanny to 3 small children a position she held for approximately one year.

60. Having decided to change direction to childcare on the advice of an agent she studied business before studying childcare.

61. She was also enrolled and paid a deposit to study a course information technology. When the tribunal asked why she would study a course that bore no relationship to any previous studies or her intended future career plans, she replied that a knowledge of IT was important for all business however she had changed her mind on those studies and had moved to Adelaide.

62. She repeatedly claimed that her passion and future job intentions were to work with special needs children. She said it was her intention on returning to Nepal to open a childcare centre specifically for children with special needs, however, despite having completed some childcare studies, and having worked in a child-care centre, the applicant has never worked with special needs children.

63. She was not able to provide any legitimate detail about her proposed business plan and her answers to questions lead the tribunal to find it was not a matter she had given serious thought.

64. She was unable to articulate any real benefit to the study of her current advanced diploma of business to her future plans other than saying the knowledge and experience she would gain would help her in the future.

65. At the first hearing in April 2015 she declared that when her current course was completed (schedule for completion in March 2016) she would return home to Nepal to open a business. At the second hearing in March 2016, (her course having been deferred and scheduled for completion in May 2016) she said on completion she may wish to stay and do further studies.

66. She was unable to say what course she might study in the future but said she believed that the course she was seeking to study was probably available in Nepal and if so she would return home.

67. Without being able to name the course or the subjects that she may wish to study in the future, leads the tribunal to find that any such vague plans have little or no value to her future business plan. The tribunal finds the applicant is seeking to use the student visa program to maintain ongoing residence in Australia.

68. The applicant has lived in Australia for 7½ years and in that time says she has returned home to Nepal for less than one month. The tribunal finds this indicates she does not have strong ties to Nepal. Her husband works as a taxi driver, she has ongoing part-time work and her 18-year-old son has just completed secondary schooling. The tribunal finds her circumstances mean she has strong ties to Australia.

69. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

70. 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.

1. The application of the secondary visa applicants, her husband Mr Suaman Khanal and her son Mr Swapnil Khanal were dependent on that of the primary applicant, and were made on no other basis. Having found that the visa applicant does not meet the essential criteria referred to above, the second-named applicants applications must also be affirmed.

   DECISION

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

   Tim Connellan
   Member