Chhetri (Migration)

[2018] AATA 1161

Chhetri (Migration) [2018] AATA 1161 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prashanna Chhetri

CASE NUMBER:  1616513

DIBP REFERENCE(S):  BCC2016/2808423

MEMBER:Richard West

DATE:4 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 April 2018 at 11:42am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Accountancy studies – Genuine endeavour to progress in his courses – Career change to hospitality – Genuinely used student visa program to complete chef qualifications – Married a Nepalese citizen who held a student visa – Lived in Australia for nearly 5 years – Established a comfortable life in Australia

LEGISLATION
Migration Act 1958, s 65, 499
Migration Regulations 1994, Schedule 2 cl 500.212

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 on 4 October 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 24 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. 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 27 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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 criterion in cl. 500.212(a) that he is a genuine applicant for entry and stay as a student because he intends genuinely to stay in Australia temporarily having regard to the factors set out in the section.

8. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student 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.

9. In considering whether the applicant satisfies cl.500.212(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.

10. 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.

11. The applicant is a Nepalese citizen. He first entered Australia on 6 July 2013 having been granted a Student Subclass TU 573 Higher Education Sector visa.  He was married on 17 February 2015 in Australia to a Nepalese citizen who held a student visa to study in Australia.  On 30 March 2015 the applicant applied for a student visa as a subsequent entrant on his spouse’s visa.  The application was refused on 4 June 2015 because the delegate was not satisfied that the applicant genuinely intended to remain in Australia temporarily.  The applicant applied for a Student (Temporary) (Subclass TU 500) visa on 24 August 2016.  The application was refused on 4 October 2016.  Since the refusal the applicant has remained in Australia on a bridging visa.

12. The applicant provided to the Tribunal documentary evidence related to his studies since arriving in Australia and was questioned about his studies during the course of the hearing.  On the basis of this evidence the Tribunal makes the following findings in relation to the applicant’s study history while in Australia:

    ·    In 2013 the applicant enrolled in a package of courses comprised of a Certificate IV in Accounting leading to a Diploma of Accounting and then to a Bachelor of Accounting at Chisholm College  – he completed the Certificate IV course in December 2013 – he studied in the Diploma course during 2014 and passed all but one subject – he was allowed to commence the degree course in 2015 but failed in first semester and did not complete the course;

    ·    the applicant completed a Certificate III - Commercial Cookery in October 2016;

    ·    the applicant completed a Certificate IV – Commercial Cookery in February 2017;

    ·    the applicant completed a Diploma of Hospitality in July 2017 and an Advanced Diploma of Hospitality in March 2018.

13. The applicant produced to the Tribunal a certificate of enrolment confirming that he is currently enrolled in a Bachelor of Business course at Stotts College commencing on 18 February 2018 and concluding on 31 December 2019.

14. During the hearing the applicant was questioned about his failure to complete the Bachelor of Accounting course in 2015.  He stated that he had studied accountancy during his secondary schooling and had been encouraged by his parents and siblings to study for a degree in accounting at an international university because it would assist him to obtain employment in Nepal.  He said that, as a teenager at the time, he had no clear idea what he wanted to do but he took the advice and applied for a visa to come to Australia to undertake a degree in accountancy.  He passed the course at Certificate III level but had difficulty with a Taxation subject at the Diploma level which he failed twice.  He was nevertheless allowed to progress to the degree level which he found ‘intense’.  He failed the first semester and became disillusioned.  He attempted to find a junior bookkeeping job to gain experience but was unsuccessful.  As a result he lost interest in continuing with accountancy. 

15. The Tribunal accepts that the applicant had a reasonable reason for undertaking his studies in accountancy in Australia and that he made a genuine endeavour to progress in his courses but lost interest after finding the course too difficult at degree level.  Direction 69 states that decision makers should allow for the reasonable motives of the applicant and the Tribunal is satisfied that the applicant had a reasonable motive for commencing and then withdrawing from the study of accountancy.

16. The applicant gave evidence that he had a ‘big mental dispute’ with himself about giving up accountancy and felt he needed a break to decide what to do next. It was about this time that he was married and he tried to obtain a dependant visa to his spouse’s student visa to enable him to take a 12 month break from study.  His application was refused.  At about this time his sister had suggested that he get a job working in a restaurant kitchen.  He took her advice and took a job as a kitchen hand which he said was his first regular job.  He gave evidence that he enjoyed working in the restaurant and was encouraged by the owner who promoted him to a position as cook in the pizza section.  He said that it was this job that led him to be interested in a career in cookery and, encouraged by his assessment that the hospitality industry is a growth area in Nepal, he enrolled in a Certificate III – Commercial Cookery course.

17. The Tribunal notes that the applicant has diligently applied himself to his studies in cookery/hospitality and that he has now qualified as a chef. 

18. The Tribunal is satisfied that the change from accountancy to cookery was a reasonable change of career and study pathway for the applicant and it makes allowance for that in assessing the applicant’s circumstances as a whole.

19. The applicant is now enrolled in a Bachelor of Business course.  The applicant gave evidence that his ambition is to become a head chef and then to set up and run his own hospitality business.  He claims that the Business degree will enable him to understand business trends and give him the skills to run his own business.  He said that he does not want to be limited and that a degree will enable him to progress beyond a head chef position.

20. Direction 69 requires the Tribunal to have regard to whether the student is undertaking a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. The Tribunal is not satisfied that a business degree is necessary for the applicant to pursue his proposed career, at least at this time.  He is currently qualified as a chef and has business related qualifications in Accountancy (Certificate IV and all but one subject of a Diploma) and in Hospitality Management (Diploma and Advanced Diploma). A business degree is therefore of marginal benefit.  In addition the applicant’s evidence was that his priority upon return to Nepal is to obtain a position as a chef and then to progress to the position as a head chef before considering setting up his own business.  On this basis there does not appear to be an immediate need for the applicant to study for a business degree.  His own plans would be better served by returning to Nepal to seek employment as a chef.

21. Direction 69 also requires the Tribunal to consider whether the primary applicant’s ties to his homeland provide an incentive for him to return and whether his ties to Australia provide an incentive for him to remain in Australia.  The primary applicant gave evidence about both matters.

22. The applicant gave evidence that his whole family is in Nepal, but conceded that he has a married sister who is living permanently in Melbourne.  He said that his family has valuable land in Kathmandu which he valued at about one million Australian dollars and that this would help finance his proposed business in the future.  The applicant did not indicate that he has any specific employment opportunities in Nepal were he to return.

23. He gave evidence that his wife is currently in Australia studying for a Bachelor of Accounting degree at Latrobe University and she will not finish until 2019.  He said he lives in a shared house and has lots of friends in Melbourne and is involved in the Nepalese community.  He plays soccer for a Nepalese team.  He said that he is getting better experience in Australia than he would get in Nepal and that he has enjoyed his life in Australia which he said had been very good to him.  He has employment in Australia which he enjoys.

24. The delegate noted in their decision that the applicant had not been back to Nepal at all for the first 1145 days he had been in Australia.  The applicant gave evidence that since the date of the delegate’s decision he has only taken one trip back to Nepal, for about 20 days recently, although he said that his spouse has been back on two occasions. 

25. No doubt the applicant has ties to his family and his home country but the fact remains that he has been in Australia for nearly 5 years which would extend to 6.5 years if he were to complete his degree course as proposed.  During this time he has had very little direct contact with his home country and he has established a comfortable life in Australia.  On balance the Tribunal is satisfied that the applicant’s ties to Australia provide a stronger incentive for him to remain in Australia than those which would encourage him to return to his home country.

26. Direction 69 further requires the decision maker to consider whether the applicant has used the student visa primarily for maintaining ongoing residence and/or to circumvent the intentions of the migration program.  For the reasons set out above, the Tribunal is satisfied that the applicant was genuine in studying accountancy initially and in making the change to hospitality and that he used his student visa genuinely to pursue those studies.  However, the Tribunal is not satisfied that the applicant’s current enrolment is necessary for the prosecution of the applicant’s stated plans.  Further, the Tribunal is satisfied that the applicant has strong ties to Australia which provide an incentive for him to remain in Australia. Having regard to these matters, the Tribunal finds that the applicant’s current enrolment in a degree course is primarily to enable the applicant to maintain ongoing residence in Australia.

27. The Tribunal has considered the economic circumstances of the applicant.  The applicant proposes to set up a business in Nepal but not in the short term.  He has not progressed in his planning beyond a general idea and he has not produced any financial information about the proposed business.  In the circumstances the Tribunal is not able to make a meaningful quantitative comparison between the applicant’s likely economic circumstances in Australia and Nepal in the long term.  In the short term the applicant said he intends to work as a chef.  The Tribunal has no evidence before it to assess in quantifiable terms the remuneration the applicant could expect to receive in Australia compared to that in Nepal.  The Tribunal does accept that the rates of pay for chefs in Australia are generally significantly higher than equivalent positions in Nepal. However, the Tribunal acknowledges that rates of pay do not give a complete picture as the applicant’s economic circumstances can be affected by the relative cost of living in the two countries and the beneficial effect of family support.  In the circumstances the Tribunal is satisfied that the applicant is likely to be better off financially in Australia but it does not give substantial weight to this factor.

28. There are no issues of military service relevant to the applicant’s circumstances and the applicant’s agent confirmed in his brief submission to the Tribunal that recent political developments in Nepal had substantially reduced the risk of political and civil unrest.

29. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the Tribunal is not satisfied that the applicant meets cl. 500.212(a).

30. Given the above findings, 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

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

    Richard West
    Member