Khadka (Migration)

[2022] AATA 775

Khadka (Migration) [2022] AATA 775 (7 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pramod Khadka
Mrs Rashmi Singh

REPRESENTATIVE:  Mr Muhammad Salman Khan (MARN:1806993)

CASE NUMBER:  2003378

HOME AFFAIRS REFERENCE(S):          BCC2019/4232344

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION:  19 January 2022 at 2:53 pm (NSW time)

DATE OF WRITTEN RECORD:                7 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions under review.

Statement made on 07 March 2022 at 8:15am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a registered course – Masters level course for legitimate academic reasons – unsatisfactory academic progress – no greater benefit for future career – applicant changed to Vocational level courses – plans to establish a business – family illness – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212, 500.311

APPLICATION FOR REVIEW

Preliminary

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 3 February 2020 to refuse to grant Student (Temporary) (Class TU) Subclass 500 visas to the applicants under the Migration Act 1958 (Cth) (the Act).

2. At the conclusion of the hearing on 19 January 2022 the Tribunal made an oral decision to affirm the delegate’s decisions and indicated to the main applicant and his agent that, because of time constraints, the Tribunal was unable to give oral reasons at that time but would give written reasons on a later date.

3. More recently the applicants’ registered migration agent, Mr Muhammad Khan, has requested more than once that written reasons be provided as soon as possible as the applicants intend to lodge an appeal from the Tribunal’s decision.

4. Indeed, the Tribunal understands that an appeal has recently been filed.

5. These are the written reasons.

   Overview of the delegate’s decisions, some procedural aspects in the review and the hearing 

6. The delegate in this case refused to grant the visa to the main applicant because he did not satisfy the requirements of clause 500.212 of the Migration Regulations 1994 (the Regulations) in that he was not a genuine temporary student in Australia. Consequently, the secondary applicant, who is his wife, could not satisfy the dependency requirements applicable to her, namely those in clause 500.311 of the Regulations.

7. To simplify references to him, and without intending any disrespect to the secondary applicant, the Tribunal will refer in these reasons to the main applicant as the applicant.

8. The applicant has engaged with the review process by filing in a timely manner the On-Line Response Form in answer to the Sec 359(2) Request, by submitting other documents in support of his case from time to time, albeit some of them were provided rather late, and by accepting the Tribunal’s invitation to participate in a telephone hearing held on 19 January 2022.

9. Shortly before the hearing the Tribunal was provided with a paper file from the Department and a PRISMS record and Movements Details for the applicant were obtained from other sources.

10. At the hearing the applicant gave oral evidence through a Nepalese interpreter over a period of about 1 hour. Mr Khan made some short submissions at the end of the oral evidence.

    Evidence relating to the applicant’s current enrolment status and the Tribunal’s approach to the other main issue in the case

11. Among the applicant’s documents is a COE for a Master of Business Administration (Advanced) (MBAA) at the Torrens University created on 11 January 2022, that is about 8 days prior to the hearing. According to this document tuition in the MBAA began on 14 February 2022 and is due to finish on 10 December 2023. The PRISMS record confirms as much.

12. On that evidence the Tribunal is well satisfied that the applicant is currently enrolled in a registered course of study, as is required by clause 500.211 of the Regulations.

13. The main issue in this review is thus the same issue which the delegate determined adversely to the applicant, namely whether at the time of this decision he is a genuine temporary student in Australia (the GTE issue).

14. In approaching the GTE issue the Tribunal will be guided by the factors referred to in Ministerial Direction No 69, a copy of which is attached to these reasons. In this case the important factors for the Tribunal to consider and weigh are, firstly, whether the MBAA can be seen to add value to the applicant’s future in Nepal; secondly, whether he has a significant incentive to return to that country on completion of that course; thirdly, his immigration history in Australia, including compliance with any conditions which have been attached to his previous visas; and, lastly, any other relevant matters.

15. The actual weight to be accorded to these factors may vary from case to case and will depend on an applicant’s overall circumstances, both here and in their home country, including of course their academic history. In this case it will be necessary for the Tribunal to determine, by reference to that history and other matters, what the applicant’s primary motive is for wanting to study the MBAA and what his real intentions are once he completes that course. Whilst his assertions about these things is direct evidence of his subjective beliefs they are, for obvious reasons, by no means conclusive and the Tribunal must consider them in the context of, among other things, what he has done and not done since he arrived here, the more objective features of the case, the apparent logic of events, including what the applicant is proposing to do, and the inherent probabilities of the case.

16. Ultimately the task in a review of this kind is to engage with the body of evidence as it has been presented to the Tribunal and determine whether, on the evidence which the Tribunal is prepared to accept, the applicant is a genuine student who intends to remain here temporarily.

17. Whether the applicant in this case is such a student will partly depend on whether the Tribunal is satisfied that he needs to study the MBAA for legitimate academic reasons and to further realistic and attainable career goals in his home country.

18. It is also timely to recall that the Tribunal is not under a general obligation to investigate any aspect of the applicant’s case. Subject of course to the need to ensure that he is accorded procedural fairness, it is for him to provide information and present his review case when invited to do so. There is, in this case, a long period of unproductive study in a high-level course which he has not adequately explained or supported in the way of evidence and other deficiencies which cannot be ignored or discounted.  

    An overview of the applicant’s case before the delegate and the decision under review

19. At the time the Visa Application (VA) was filed on 26 August 2019 the applicant was enrolled in a Master of Business Administration (MBA) and a Master of Professional Accounting (MPA) at the Holmes Institute in Sydney. The evidence before the delegate in the form of the PRISMS record revealed that the MPA commenced in July 2017.

20. In his 2019 GTE statement the applicant explained to the delegate that he had obtained a Bachelor of Hospitality and Catering Management at a local University in Nepal and had some years of work experience in the field of hospitality before he came out here but, having attended some seminars and other educational events in Australia, decided to continue his studies in a different field. He said that he wanted to develop administrative skills to seek opportunities to further his career at the management level but not necessarily in hospitality. He went on to explain that his wife was ill when he arrived, he was unable to focus on his studies for some time because of that and he accepted that his academic performance in the MPA was “not good”. That, it must be said, is something of an understatement given that he made almost no progress in that course, but he went on to say that he would do better in future and felt he deserved “one last” chance.

21. In his letter dated 16 October 2019 the delegate sought further information from the applicant in relation to his academic history. He referred in some detail to the applicant’s unsatisfactory record and he expressed concerns that it did not support the VA.

22. More particularly he noted in this letter that the applicant was initially granted a Student visa to study a package which consisted of an English course and a Master of International Tourism and Hospitality Management (MITHM) at the James Cook University but that, having completed the English course in June 2017, the applicant did not start the MITHM and instead enrolled in the combined MPA/MBA course at Holmes. The delegate went on to note that his enrolment in this course was cancelled on 29 August 2019, that is a few days after the VA was filed, for unsatisfactory performance and that was a breach of condition 8202 subject to which his initial TU-500 visa had been granted. Furthermore, the delegate noted that the applicant’s enrolment in the MBA was also cancelled on the same date for non-commencement of studies and that, according to PRISMS, he did not have a current COE.

23. Given that history the delegate said in his letter that he held significant concerns that the applicant may be using the Student visa program to remain in Australia indefinitely and the applicant was invited to respond to these concerns within 28 days by providing any further information which he (the applicant) felt was relevant.

24. In his reasons the delegate noted that the applicant did not respond to the letter and no evidence to suggest otherwise has been led on the review, nor has the applicant led any evidence to contradict the delegate’s finding that his enrolment in the MPA was cancelled for unsatisfactory progress in August 2019. Indeed, the information which he provided to the Tribunal in his Response Form, confirmed by his oral evidence, is to that effect.

25. It is clear from the delegate’s reasons that he regarded the applicant’s poor academic performance during the 2 years from July 2017 to August 2019 to be a serious concern in the overall circumstances of this case. The delegate said that he was not satisfied that the applicant had selected the combined course at Holmes to improve his educational outcomes or to further his career and that, consequently, he had not demonstrated that these courses would add value to his future. Central to this finding was the fact that the applicant had not  shown that the courses at Holmes would be of any greater benefit to him than the qualifications and experience he had already gained.

26. Nor was the delegate convinced that the applicant had a significant incentive to return to Nepal on completion of the combined course. The fact that his wife and brother were residing in Australia amounted to close ties as was his ongoing employment here as a Catering Assistant.

27. His immigration history was also a concern given he had not returned to Nepal since arriving here in April 2017 and had not complied with his visa conditions.

28. After weighing up these factors the delegate was not satisfied that the applicant intended to remain temporarily in Australia, clause 500.212 was not met and his VA was accordingly refused.

    Findings and evidence on the applicant’s claims in the review

29. It is firstly necessary to set out the background in which these clams must be considered. Apart from his explanations for his poor performance in the MPA at Holmes much of it is taken from his documentary case and is uncontroversial.

30. The applicant was born in Nepal in 1989. He completed his secondary schooling in 2006 and a course in Hotel Management in 2008 before working as an assistant chef in a local café until 2010. He went on to complete the Bachelor course mentioned earlier in these reasons in 2014 which apparently required him to work as an intern in Malaysia for 6 months during the second half of that year, presumably in catering or a related field. 

31. He was married in May 2016. In his 2022 statement he says that his wife applied with him for the initial TU-500 visa as a dependent in February 2017 but withdrew her application when she was diagnosed with tuberculosis. The Movements Details reveals that he was granted that visa on 12 April 2017 and that he arrived here shortly thereafter on 18 April 2017 to study the courses mentioned earlier in these reasons. His switch from the MITHM to the combined MPA/MBA is not explained but little turns on this.

32. In his statement to the Tribunal dated 17 January 2022 (the 2022 statement) the applicant says that his wife arrived in Australia in May 2019 as a dependent on his visa by which time he had come to realise that accounting was not a suitable course for him. 

33. According to his Response Form, confirmed by PRISMS, the applicant enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at the Skills Institute of Australia in January 2020, shortly before his VA was refused. He does not appear to have informed the delegate of this significant change to his enrolment status, nor has he explained why he did not do so, but the Tribunal is well satisfied that he completed each of these courses on time, the CIV in May 2021 and the Diploma in November of that year. There is independent documentary evidence to this effect.

34. As noted earlier the applicant enrolled in the MBAA on 11 January 2022, this being more than 10 weeks after the Sec 359(2) Request was sent to him on 22 October 2021 and almost 4 weeks after the Hearing Invitation was sent on 16 December 2021.

35. In the 2022 statement the applicant claims that he is a genuine temporary student who wants to pursue a career in hospitality and undertake his studies in the MBAA before returning to Nepal to open his own restaurant and, ultimately, a chain of restaurants under franchise. According to this statement the MBAA will enhance his managerial skills and give him a better understanding about “the business structure”. Taken in conjunction with his previous qualifications and work experience in the hospitality field, he says that the MBAA will enable him to work in multiple roles such as a head chef, sous chef, restaurant owner or manager. He mentions that he is currently working as a chef, that he had gained theoretical and practical knowledge in that field, presumably a reference to his previous vocational studies and work experience in Nepal and Australia, and that it was a field in which he had always wanted to work in.    

36. The Tribunal does not accept the applicant’s evidence in this statement regarding his motives for enrolling in the MBAA at this stage of his academic program here at least to the extent that he puts forward in general terms, for the first time in the review, a desire to open a chain of restaurants in Nepal. There is no specific mention in his Response Form, a document which he signed and apparently completed in early November 2021, of him wanting to own or manage a restaurant in Nepal let alone a chain of them. He does say in this Form that he wants to find work as a chef, a logical career path for the applicant given his earlier qualifications and experience in hospitality, and he does mention a desire to start-up his own “business” but, even if this is seen in context to be a restaurant, it is apparently a long-term proposition at best and no further details regarding the nature of this business, how it would be funded, where it would be located and so on are provided in his review case.

37. In any event, even if that evidence were to be accepted at face value, the Tribunal does not accede to the proposition that an MBAA would be of any real benefit to the applicant in owning or managing a restaurant in a country such as Nepal given his previous qualifications and experience in the hospitality field.

38. Absent any evidence, apart from the applicant’s bland assertion, to the effect that an MBAA would assist him to do these things the Tribunal is simply not prepared to infer that it would. It may be that completion of such a course might better enable him to operate an enterprise under franchise but again this is too speculative and is, in any event, an ambitious and belated plan to say the least. The evidence (such as it is) falls well short of convincing the Tribunal that it is a realistic or reasonably attainable one for this applicant. The recent assertion that he wants to open a chain of restaurants in Nepal on a domestic or international scale appears to the Tribunal to have been concocted to advance an otherwise deficient case on the GTE issue.

39. In his oral evidence he said that during the 2 years he was enrolled in that course he was able to pass only 1 or 2 subjects from a total of 10 or 12 he says he studied. He did not provide a Results Transcript for his studies in the MPA and did not explain why he had not done so. As noted earlier, he did accept that his performance in that course was “not good” but he sought to explain this solely on the basis of his wife’s illness and its consequential effects on his capacity for productive study.

40. The applicant states that he was stressed by his wife’s illness, coming here without her and not being able to support her when she needed it most. He goes on to say that he found it disturbing when he tried to contact her and found that she was not in a condition to take his calls, apparently. He says he was in “total grief” when he learned that her initial diagnosis was wrong and that her medication had caused other complications. He states that he could not focus on his studies because of these things.

41. The extent of the medical evidence which the applicant has belatedly provided to support these assertions consists of two reports which merely contain the results of blood and other tests carried out during his wife’s ongoing hospitalisation and treatment in Nepal. Whether she was in hospital throughout this period, and if not for how much of it, is unclear on the evidence but there is nothing in these reports to corroborate his statement that she was wrongly diagnosed with tuberculosis in or about February 2017 much less do they support his claims that his ability to study in the MPA was compromised because of her illness. In any event, if he is right when he says that her illness was wrongly diagnosed, there is no evidence to indicate when her condition was correctly diagnosed and, if so, what in fact it was. 

42. On his own case the applicant chose to come here after his wife had fallen ill and he chose to remain here despite the ongoing nature of her illness, the apparent difficulty which her medical advisers had in diagnosing it, the difficulty which he had in communicating with her, and its asserted deleterious effects on him and his ongoing capacity to study. If what the applicant says is true, he could and should have deferred his studies in the MPA on compassionate grounds by the end of 2017, at the latest, and returned to Nepal to support her as best he could but he did neither of those things, certainly there is no evidence that he did, and he has not paused to satisfactorily explain to the Tribunal, or to the delegate for that matter, why he did not do so.

43. The Tribunal does not accept his oral explanation that he did not know that he could defer his studies in the MPA. This evidence is quite incredulous given his experience and the prolonged period of unproductive study in this high-level course and to suggest that he remained unaware of his deferral options in these circumstances does him no credit. 

44. The Tribunal does not accept his uncorroborated and self-serving assertion that he was unable to concentrate on his studies in the MPA because of her illness.

45. The more probable explanation, and it is one which the applicant himself appears to implicitly (if not explicitly) endorse, is that he became disinterested in the content, did not devote sufficient time or energy to the course, or simply found it too demanding, or a combination of these things. But none of them can assist him given that he now wants to study an MBAA, a course presumably no less onerous or demanding in content. Certainly, there is no evidence to the effect that the MBAA would be any easier for him than the combined course at Holmes.

1. Although the Tribunal can make allowances on a review of this kind for reasonable mistakes and acceptable changes in direction this is not a case which involves either of these things. He came out to Australia as an experienced student to study a high-level course in the hospitality field, switched to a combined course in a different field but made no progress in it over a period of some 2 years, then switches back to a vocational package in hospitality while working here as a Catering Assistant. After completing them, and at the heal of the hunt, instead of returning to Nepal to resume his career in hospitality, or at least attempting to do so, he enrols in another high-level business course of doubtful utility on the pretext that he wants to enhance his managerial skills so that he can operate a restaurant in Nepal before slowly expanding the business by way of franchise without pausing to explain what commercial asset he would have to franchise.

2. The applicant says in his 2022 statement that his uncle owned a restaurant in Nepal and that he had always been inspired by his uncle to do something on his own. This assertion finds no real support in the objective features of the case or in what the applicant has in fact done, either here or in Nepal. His entire academic history and work experience indicates clearly enough that he has been well suited to a career in hospitality as a chef and that that is where he should be heading. He accepted at the hearing, as did his agent, Mr Khan, that he was already well qualified to find work as a chef in that country.

3. Although the applicant also suggests in the 2022 statement that he will first take advice from his uncle about the market in Nepal before going his own way the applicant had some difficulty explaining to the Tribunal in concrete terms how an MBAA would better enable him to operate or manage a restaurant in that country. Mr Khan reiterated in his oral submissions that the applicant wanted to go back to Nepal on completion of the course to run “a business” but no further detail was provided.

4. The Tribunal is by no means convinced that the applicant is motivated to undertake the MBAA to better enable him to own and/or operate a restaurant, or a chain of them, in a country such as Nepal. There is no or no sufficient evidence on which the Tribunal could find that completion of such a course would enhance his pre-existing knowledge and managerial skills in such a way and to such an extent as to justify him going down that path at this late stage of his academic program here.

5. Nor is the Tribunal satisfied in these circumstances that the applicant would be capable of completing the MBAA on time or at all. His successful completion of the VET courses in hospitality, given his previous qualifications and experience in the field, provide no reason to expect that he will.

6. In any event, even if the MBAA could be seen to be achievable and add value to his future in the hospitality sector in Nepal, the Tribunal would not be prepared to place any or any significant weight on it in the overall circumstances of this case.

7. Turning to the issue of whether the applicant has a significant incentive to return to Nepal on completion of the MBAA, the Tribunal is not convinced that he does.

8. He has personal ties to Nepal in the form of his parents. He said in the 2019 statement that it had been a struggle for them, perhaps a reference to the provision of financial support during his tertiary studies in Nepal, and that he wanted to look after them in their advancing years. He describes his family as “close knit” and he refers to a strong emotional bond with Nepal.

9. The problem with much of this evidence is that it finds little support in the objective features of the case. The simple fact is that he has not returned to Nepal since he arrived in Australia in April 2017, now almost 5 years ago. Nor have his parents been out here to see him in circumstances where, according to his case, they had ample means to do so. He was not studying productively for about 2 years prior to the onset of travel restrictions in March 2020 but, according to the VA and the 2022 statement, he was working here on a casual basis as a Catering Assistant with Synchrony Australia as from early March 2018. This history suggests to the Tribunal that he had other priorities during this period. It certainly does not suggest that he was in any hurry to go home. There is no evidence from him to the effect that his parents have had any influence on his decision-making since he came out here although he did give some oral evidence to the broad effect that they have paid some of his tuition fees.

10. The applicant’s wife has been residing here with him here since May 2019, apparently. According to his oral evidence she has been gainfully employed here more or less since she arrived and is presently working for a printing firm. As noted earlier, he is presently working here on a part-time basis as a chef, doing the type of work for which he is well suited given his existing qualifications and experience. On any view, these are strong ties to Australia.

11. On the Tribunal’s findings the applicant has no strong potential economic tie to Nepal in the form of his asserted plan of owning or operating a restaurant or other business in that country and, although he could readily find work there as a chef, he has shown little or no interest in doing so.

12. On balance the Tribunal is unable to find that the applicant has a significant incentive to return to Nepal on completion of the MBAA. This too is a weighty adverse factor in the overall circumstances of this case.

13. As far as his immigration history is concerned, there has been a clear and unexplained breach of conditions 8516 and 8202 by the applicant, breaches which have persisted for a relatively long period of time and which he has endeavoured to explain away by giving an uncorroborated and unacceptable account of the flow-on effects of his wife’s illness. This has been counter-intuitive and has done little to promote confidence in what he is now saying. The Tribunal has no real option but to attach weight to this factor in the overall circumstances of the case.

14. The other matters about which the applicant has failed to give evidence of in his Response Form are noted but little if anything turns on them. Some have been touched on in his 2022 Statement. 

    Summary and conclusion

15. The Tribunal has taken the applicant’s evidence regarding his asserted reasons for wanting to remain in Australia to study the MBAA into account but finds them unconvincing when viewed in the context of what he has done and not done since he arrived here almost 5 years ago. His belated enrolment in this course is best seen as a strategic step which he has taken to enable himself and his wife to remain in Australia for reasons other than a genuine desire on his part to further his education for legitimate career related purposes. 

16. The Tribunal is on these findings unable to conclude that the applicant is a genuine student who intends to remain here temporarily.

17. Given the findings the Tribunal concludes that the statutory criteria for the grant to the applicant of a Sub-Class 500 (Student) visa are not met in this case.

18. As the applicant does not claim to meet the criteria for a Sub-Class 590 (Student Guardian) visa, and as the secondary applicant applied for the visa on dependency grounds, the decisions under review must be affirmed.

    DECISION

19. The Tribunal affirms the decisions under review.

    Michael Bradford
    Member