1508447 (Migration)

[2016] AATA 4860

1508447 (Migration) [2016] AATA 4860 (8 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr ROHIT SHRESTHA
Ms SANILA PRADHAN

CASE NUMBER:  1508447

DIBP REFERENCE(S):  BCC2015/702692

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 November 2016 at 2:55 pm (VIC time)

DATE OF WRITTEN RECORD:                18 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 18 January 2017 at 11:00am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Inconsistent evidence regarding work and study history – Wife studies in Australia – Delays in commencing studies

LEGISLATION
Migration Act 1958

Migration Regulations 1994, Schedule 2 cl 572.223

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 11 June 2015 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 572 visas under the Migration Act 1958 (the Act).

2. At the hearing on 8 November 2017 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. To be eligible for the grant of a student visa, applicants must be both genuine temporary entrants and genuine students.

4. To be a genuine temporary entrant your circumstances must support a genuine intention to remain in Australia temporarily

5. You applied for a student visa on 4 March 2015           .

6. Your application was refused on 11 June 2015 because having considered your circumstances, the delegate found you were not a genuine temporary entrant but were using the student visa programme to maintain residence in Australia.

7. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

8. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and they include:

   ·Your circumstances

   ·The value of your course/s to your future

   ·Your Immigration history

   ·Your incentive to stay in Australia or return home

   ·If you are using the student visa programme to maintain ongoing residence in Australia

   ·Any other relevant matters

9. This is not meant as a checklist but as a guide to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. The role of the Tribunal is to take a fresh look at your application, consider your circumstances, and the issues in Direction No.53 and be satisfied you are a genuine student who genuinely intends to stay in Australia temporarily.

11. You told the Tribunal you had read and understood the primary decision a copy of which you provided with your application and which we have discussed today in some detail.

12. The primary decision and its detailed references to the issues of Direction No 53 put your notice of the issues in your case. When we sent you the hearing invitation we advised that we would assess whether you met the genuine temporary entrant criteria and asked you to provide a statement addressing the issues in Direction No. 53 again clearly putting you on notice about the issues the Tribunal would consider.

13. In response you provided a submission in which you stated you had come here with your wife and for the last 7 years you had been a dependent on her student visa and had supported her in her studies and have only recently decided to study yourself.

14. When asked about your wife’s studies, you say that before coming to Australia you both studied a Bachelor of Commerce. You are not sure of her progress in that course but say she came here and did a package of courses in Hospitality including Certificates III & IV and a Diploma.

15. She then did a Diploma of Business and a Diploma of IT. When asked why she changed from Hospitality to Business and IT you provide no reason other than she wanted to change direction. You provide no reason at all why she studied IT and say you do not know.

16. You say she is working as a food service assistant in an Aged Care facility the when the Tribunal notes this is not working as a cook, you say she was previously a cook.

17. You say you are from a family in Nepal who have a restaurant background.

18. When I ask about your mother you initially said she was a cook and housekeeper for more than 20 years for an American family who had moved to Nepal.

19. You subsequently changed your story and said she did that job of cook and housekeeper on the side as the family had a restaurant.

20. You say you have worked in Australia for the last 7 years in a hamburger bar.

21. The Tribunal considers you have provided conflicting evidence about what period you have worked where. In an earlier statement you referred to your five years tenure at Burger Edge but told the Tribunal today you had only worked there for three years. In a statement you provided to the Tribunal very recently you stated you had worked as a kitchen hand and cook with an employer who was the nicest man you had ever met and you didn’t realise you had spent seven years in the blink of an eye. This certainly gives the Tribunal the impression that you had been with that employer for seven years. However that’s not what you say here today.

22. You say you now wish to gain formal qualifications in hospitality to improve your future.

23. When asked about your future, you provided a number of different scenarios. Opening a hospitality related business catering for tourists and locals, opening a franchise, large or small, working in partnership with family or friends and you spoke of the fact that Australian qualifications will enable you to work anywhere in the world.

24. When asked about your business plan you speak about a restaurant but are unable to provide details of how large the business would be or other basic details leading the Tribunal to find you do not have considered business plan.

25. The timing of your application was referred to in the primary decision. Your previous dependent visa was current until 15 March 2015. You applied for this new visa on 4 March 2015 and had arranged enrolment less than a week earlier. In the primary decision the delegate noted the timing indicated you had commenced studying for the purposes of gaining a visa rather than a genuine desire to study. You say this was a matter of coincidence.

26. Regarding your studies you provided evidence of having completed a Certificate IV in Commercial Cookery.

27. It’s interesting as you provided a Certificate III for a course you studied between 20 April 2015 and 15 April 2016.

28. You then provided academic transcripts for a Certificate IV in Commercial Cookery which comprised 33 units. You achieved competency in 7 units, are yet to be assessed in 2 units and received Credit Transfer for the remaining 24 units.

29. The 7 units in which you achieved competency included:

    ·     implement and monitor work health and safety practices

    ·     manage conflict

    ·     manage diversity in the workplace

    ·     implement and monitor environmentally sustainable work practices

    none of which are related to cookery skills

30. there were a couple that were cooking related

    ·     coordinate cooking operations

    ·     develop menus for dietary requirements, and

    ·     manage finances within a budget which may be so classified

31. Given your stated reasons for study is to become a professional chef, the Tribunal considers that given the time you had to prepare, you would have studied a course that provided learning opportunities in your chosen field.

32. The Tribunal does not believe your academic progress is that of a genuine student.

33. When asked why you waited 7 years to study, you provided a range of reasons, saying that it took time to settle, to understand the way of living, language barrier and the whole system. You had time management issues and needed to do household things etc. and you waited for the right opportunity and time to resume study but 7 years had already passed which you say you were unaware of. You were supporting your wife and financially you were not in a position to both study. You had been working for a man you say is the nicest man you ever met and didn’t realise you spent 7 years in the blink of an eye.

34. You stated that every international student has a dream to achieve higher education from the best education provider around the world and that leads them to countries like Australia which was your motivation. The Tribunal does not accept that you then waited seven years to start studying.

35. The Tribunal finds your claim that you were unaware of passing time implausible, does not accept it is reasonable to wait 7 years to commence study and finds your decision to now start studying is not in pursuit of an academic pathway, but an attempt to maintain residence in Australia.

36. Before coming to Australia you said you studied a Bachelor of Commerce about which you were extremely vague but said you had studied it for six years. You have no evidence of any of those studies.

37. When asked how your current and proposed studies provide value to your future you are vague at best and simply say it will enable you to run an international operation.

38. The Tribunal does not accept your arguments particularly given you say you want to establish and run a business of a restaurant putting out international cuisine but you have stopped studying cookery at Certificate III level and you provide no evidence you have done anything further to gain skills or expose yourself to fine dining or international cuisine.

39. I have difficulty believing that your current or proposed studies provide any value to your future.

40. You say you have family in Nepal and in a statement provided to the Tribunal in the last 48 hours you say that your mother is only in her 50s and is active. The Tribunal believes you provided a contradictory statement at today’s hearing when you say she recently stopped studying because she has diabetes. 

41. You say you intend returning home to care for her in her old age. You also say she has acquired a number of assets which you will inherit as her only son which is another reason to return.

42. The Tribunal acknowledges you may have incentive to return, however in weighing up your circumstances I have considered your actions.

43. You have already spent over 8 years in Australia and now provide evidence of enrolment in further courses including a Diploma of Hospitality scheduled to run to June 2017 and say following that you look forward to studying a Bachelor of Tourism and Hospitality.

44. When I ask you how long you intend to stay in Australia, you say you do not know. I am not sure whether that means you don’t know the scheduled duration of the course or how long it will take you to complete it. The Tribunal finds that such a study programme which will keep you away from home for over 10 years is a strong indication that returning to Nepal is not a high priority.

45. Having considered your circumstances as a whole, including the issues in Direction No 53, I am not satisfied you are a genuine student who intends to stay temporarily in Australia. Therefore I find you do not meet clause 572.223(1)(a).

46. It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

47. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member