1506785 (Migration)

[2016] AATA 4079

1506785 (Migration) [2016] AATA 4079 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vijay Kumar Maharjan

CASE NUMBER:  1506785

DIBP REFERENCE(S):  BCC2015/989989

MEMBER:Miriam Holmes

DATE:12 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 12 July 2016 at 10:07am

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 30 March 2015. The delegate decided to refuse to grant the visa on 30 April 2015. 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 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 intended genuinely to stay in Australia temporarily.  

4. The applicant appeared before the Tribunal on 11 July 2016 by teleconference to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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)     …

8. 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.

9. 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.

10. The Tribunal had regard to the Direction and the following matters in assessing whether the applicant intends genuinely to stay in Australia temporarily.

11. The applicant was born in 1977 in Nepal and is aged 39 years and is a citizen of Nepal. The applicant’s mother resides in Nepal and operates a grocery store business. The applicant’s father passed away some years ago in 1999. The applicant has one brother residing in Nepal who is separated, and working in his own grocery store.

12. The applicant was married in Nepal in approximately 2000. The applicant has two children aged 15 years and nine years. The applicant’s wife and children reside in Nepal. The applicant’s wife is also working in the grocery store operated by the applicant’s mother.

13. The applicant has no family in Australia.

14. The applicant attended secondary school in Nepal and completed his secondary school education in 1995. The applicant subsequently commenced studies in a Diploma in Civil Engineering and finished most of this course in approximately 1998. He had to complete two or three units which he subsequently completed in 2001.

15. Between 1998 and 2008 the applicant worked in Nepal in the road construction industry and was involved in surveying roads and bridges.

16. In 2008 the applicant travelled to Australia on a student visa. When the Tribunal asked the applicant why he came to Australia in 2008 he stated that his country Nepal was not in a very stable condition and he was feeling very uneasy to work in the remote areas of Nepal, that’s why he tried to travel to Australia and chose a Diploma in drafting, also known as the Diploma of Civil and Structural Engineering (drafting) course in Australia.

17. After arriving in Australia initially the applicant undertook and completed an ELICOS course to assist in developing his English language skills.

18. Thereafter the applicant commenced the Diploma of Civil and Structural Engineering (drafting) course. The applicant stated that he commenced the course however with only two units left he ceased studying the course in either 2009 or 2010. The applicant stated that he did commence the Advanced Diploma of Civil and Structural Engineering course but did not complete this course either. The applicant estimated that he studied the Diploma of Civil and Structural Engineering course for approximately 6 months. The applicant stated that he ceased the courses because he found the course work very hard. He stated that since he had a gap in his studies since 1998 and had been working for an extended period he found it very hard to return to study.

19. The applicant then changed courses, and commenced and successfully completed a Certificate III in Horticulture between 5 April 2010 and 20 March 2011. The applicant stated that he undertook a horticultural course because it was related to his construction work. He said that one of his friends had also left the diploma of civil and structural engineering and had moved to the horticultural course and his friends convinced the applicant to do the same thing as it would be helpful for his construction related work.

20. After completing the Certificate III in Horticulture course, the applicant enrolled and completed a Certificate IV in Small Business between 11 April 2011 and 10 September 2011. Then the applicant enrolled and undertook a Diploma of Business course between 26 September 2011 and 2 April 2012. The Tribunal asked the applicant why he pursued business courses and the applicant responded that his migration agent told him that he needed to apply for a visa for two years and that he needed to apply for a Diploma level course. The agent advised him not to apply for a Certificate III level course but to pursue a Diploma level and that’s why he undertook a Diploma of business. The Tribunal asked if there is any other reason why he pursued business courses and the applicant stated that he thought that if he went back home and he undertook a business course it would be helpful for him. The Tribunal queried how it would be helpful and he said that it would be helpful for his mother who was operating a grocery store business.

21. The applicant gave evidence that in 2012 he commenced a Diploma of Management course at Stanley College. However he gave evidence that he did not complete this course. The applicant stated that he did not complete the course because of the College situation; he had too many difficulties at that College as he had a lot of problems with the teachers. He said the problems with the teachers were that they did not attend classes and they gave him assignments and told him to finish the assignments on time, but he was unable to complete the assignments without the necessary classes.  The applicant stated that he left the course but the College charged to for the semester in any event, so he re-enrolled at the course because they had charged him for a one semester fee.  He believes he stopped studying the course sometime in 2012.

22. In 2013 the applicant enrolled in a Certificate III and Certificate IV in Commercial Cookery courses at Stanley College. The applicant commenced the Certificate III in Commercial Cookery course at Stanley College however he did not finish the course. The applicant stated that he could not finish the course because in the workplace training placement the trainer was very strict and he complained about her. The College did nothing about his complaint. The applicant stated that he stopped studying the course in approximately November 2014.

23. The Tribunal notes that between 2012 and 2015 the applicant did not successfully complete any course and he confirmed this was because of College difficulties at Stanley College. The Tribunal queried why the applicant kept studying at Stanley College in particular enrolling in the Certificate III for Commercial Cookery course if he had difficulties with the Diploma of Management course at Stanley College.  The applicant replied it was because of his visa conditions and he did not have any idea at that time about what to do.

24. On 30 March 2015 the applicant enrolled in a Certificate III Commercial Cookery course to be undertaken between 13 April 2015 and 11 March 2016, a Certificate IV in Commercial Cookery course from 21 March 2016 until 16 September 2016 and the Diploma of Hospitality at between 26 September 2016 and 28 April 2017.  These courses were all to be undertaken at Kingston international College of Western Australia. The applicant provided evidence that he successfully completed the Certificate III in Commercial Cookery course between April 2015 and 11 March 2016 and was awarded the Certificate on 5 May 2016. The applicant gave evidence he has now commenced the Certificate IV in Commercial Cookery course.

25. The Tribunal asked the applicant why he had chosen in March 2015 to pursue Commercial Cookery. The applicant stated that he wanted open his own business in his own home town after completing the hospitality courses. The applicant stated that he had dreams and plans to open a business and that’s why he pursued the hospitality courses. The applicant went on to state that his hometown is a tourist attraction place and that’s why he plans to open a cafe in his hometown. The applicant stated that he has enough finance but provided no further detail and the Tribunal asked whether he has done any other planning other than to consider the idea of opening a café and he replied no.

26. The applicant gave evidence that he has been in Australia since 2008 and in that period he has been granted four student visas. This is consistent with the departmental records which indicate the applicant has been granted the following student visas. On 25 March 2008 the applicant was granted a subclass 572 visa until September 2010. On 5 October 2010 the applicant was granted a student subclass 572 visa until 18 May 2012. On 23 May 2012 the applicant was granted a student subclass 572 visa until 18 June 2013. On 8 December 2014 the applicant was granted a subclass 572 visa until 30 March 2015. The Tribunal is currently considering the applicant’s fifth student visa application that was lodged with the Department on 30 March 2015.

27. Since the applicant arrived in Australia he has been residing with Nepalese friends.

28. The applicant has only returned twice to Nepal. The applicant stated that he returned in 2011 for a period of 21 days and the applicant returned in December 2014 for a period of four weeks to attend a religious ceremony pertaining to his son.

29. The applicant has worked whilst he has been in Australia. The applicant worked in the hospitality sector as a kitchen hand and undertaking cooking. In the first period he worked for 3 to 4 months and then in a subsequent employment position he worked for a period for one to 2 years in the hospitality industry. Over the last 4 to 5 years and currently the applicant has been working in a frozen food factory packing frozen food. The applicant states that the only works 20 hours per week and earns roughly $500 per week. The Tribunal noted that wages in Australia are relatively high in comparison to wages in Nepal and the applicant agreed and said that they are higher however he has enough money in Nepal to survive in Nepal. He stated that in Nepal it is very cheap there for food and other things, and so the difference in the wages and living costs is approximately the same. The applicant stated that he does send a little money back to Nepal but not enough.

30. The Tribunal asked the applicant why he would return to Nepal and he stated that he wanted to stay with his family for the rest of his life, and in the past in Nepal he was working in rural areas.

31. The Tribunal expressed its concern that it may not be satisfied that the applicant is intending genuinely to stay in Australia temporarily given that he has been residing in Australia since 2008, that he has only returned back to Nepal for two brief trips in the last eight years, that he is currently working and earning an income in Australia, that he has undertaken a number of low-level courses, and that these courses have been unrelated to his previous employment and do not demonstrate a career pathway, and further that there was a gap in successful study between 2012 and 2015. The applicant replied he promises that he will not apply in the future for a student visa and that he will complete this course and then return to Nepal. He stated that he needs to return to his family in Nepal. The Tribunal noted that the applicant had been in Australia for the last eight years and had lived without his family in that period. The applicant responded that he wants to return to Nepal to open a business and he needs to complete the course to undertake that path so he can open a café. The Tribunal noted that he had a history of remaining in Australia and he had now been granted four applications for a student visa, and was now seeking a fifth visa and this is indicative that he is seeking to remain in Australia and using the student visa program for that purpose. The applicant replied that he wanted to complete this one course to start his dream business and he hopes he will be successful soon.

32. The Tribunal has considered the various matters above and on balance is not satisfied the applicant intends genuinely to stay in Australia temporarily.

33. There are factors indicative that the applicant intends to stay temporarily in Australia.  The applicant has successfully completed a number of courses in Australia, including an ELICOS course, a Certificate III in Horticulture, a Certificate IV in Small Business, a Diploma of Business and a Certificate III in Commercial Cookery. The applicant also has strong family ties to Nepal, including his mother, wife, two children and sibling. The applicant has also returned to Nepal on two occasions since 2008.

34. However there are a range of factors that the Tribunal took into account the Tribunal considers outweighs the factors indicative that the applicant intends genuinely to stay in Australia temporarily.

35. The applicant has been residing in Australia since 2008. He has settled in Australia and been living with two friends and has been employed for the last 4- 5 years generating a regular income. Over the last eight years the applicant has only returned to Nepal for a total period of approximately 7 weeks. The Tribunal finds the applicant has spent most of his time over the last eight years residing in Australia. The visa applicant is seeking to remain in Australia until April 2017; this would mean the applicant would have been living in Australia for over 9 years.

36. The applicant has undertaken a number of low-level courses over the last eight years in Australia. These courses have been wide-ranging and do not demonstrate any clear career path. These most recent courses for which the applicant is seeking a student visa are completely unrelated to his previous work history in Nepal, his previous courses of study and have limited relevance to his current employment in Australia. On the evidence presented given the changing nature of the applicant’s courses, the Tribunal is not satisfied that these courses are for the purposes of enhancing the applicant’s employment prospects or to obtain employment. The applicant obtained a Diploma in Civil Engineering in Nepal and then travelled to Australia and pursued a Diploma of Civil and Structural engineering. The applicant was unable to successfully complete this course and therefore subsequently pursued a Certificate III in Horticulture and then progressed by undertaking a Certificate IV in Small Business and a Diploma of Business. Thereafter the applicant commenced a Diploma of Management, although did not complete this course and has subsequently pursued Commercial Cookery studies. The Tribunal did not find the applicant’s explanation as to why he changed from civil engineering and horticultural courses to business courses compelling or persuasive. The applicant gave evidence he came to Australia due to the instability in his home country and that he pursued the horticulture course on the advice of a friend and enrolled in the business studies because his agent advised him to enrol in a Diploma level course and not a Certificate III level course. The Tribunal is not satisfied that the applicant had the primary purpose of enhancing his skills or knowledge to improve his employment prospects when he enrolled in the various courses in Australia.  Further the Tribunal did not accept that the applicant has pursued studies in commercial cookery with a view to establishing a café business in Nepal. The applicant has undertaken no business planning in relation to his plan to open a cafe in Nepal and the applicant’s previous work history and studies in Nepal do not indicate that that it was his dream (as he states) to open a hospitality cafe in Nepal. The Tribunal considered that the applicant’s changing courses over the last eight years and undertaking a number of low-level vocational courses indicate the applicant is using the student visa program to maintain residence in Australia. The Tribunal is not persuaded that after completing a Diploma of Hospitality that the applicant will return to Nepal with a view to establishing his own business by operating a cafe.

37. The Tribunal also took into account the applicant had a period of approximately 3 years, between 2012 and 2015 when he did not successfully complete any course. The applicant states this is due to difficulties at Stanley College, yet the applicant only transferred out of this College in 2015, despite the difficulties in the preceding years in the Diploma of Management course and then the Certificate III in Commercial Cookery course. This lack of progress over an extended period indicates that the applicant is using the student visa program to maintain residence in Australia.

1. The applicant has been granted four student visas to pursue studies in Australia. During the period of the most recent student visa between 8 December 2014 and 30 March 2015 the applicant did not successfully complete any course. The applicant has spent a significant amount of time in Australia for the purposes of study and the Tribunal considers that over the period of four student visas the applicant has had sufficient time to gain qualifications for the purposes of enhancing his employment prospects and to assist the applicant obtain employment in Nepal. The Tribunal considers the number of student visas already applied for and granted and then this fifth student visa application is indicative that the applicant is using the student visa program primarily to maintain ongoing residence in Australia. 

2. The applicant has been working in Australia and generating income. He is currently working in a frozen food factory and earning approximately $500 per week, the Tribunal considers this is a financial incentive to remain resident in Australia.

3. The Tribunal is also took into account the applicant’s explanation that he travelled to Australia for the purpose of study because of the instability at that time in Nepal. This explanation provided by the applicant indicated that he did not come to Australia with the primary intention of studying to enhance his employment prospects but due to the circumstances in his home country at that time.

4. 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).

5. 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

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

   Miriam Holmes
   Senior Member