Nachoski (Migration)

[2019] AATA 1557

Nachoski (Migration) [2019] AATA 1557 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Goran Nachoski

CASE NUMBER:  1726594

HOME AFFAIRS REFERENCE(S):           BCC2017/3005960

MEMBER:Peter Booth

DATE:16 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 May 2019 at 11:43am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of stay in Australia – value of course – desire to run and operate a restaurant  – inconsistent with education history – disparate nature of courses studied in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 and Border Protection on 9 October 2017 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 21 August 2017. 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 24 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian 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

1. 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 is a genuine temporary entrant.

2. 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.

Does the applicant intend genuinely to stay in Australia temporarily?

1. 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.

2. 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.

3. The applicant gave evidence to the Tribunal to the following effect.

4. The applicant had read and understood the delegate’s decision dated 9 October 2017 refusing his application for a Student (Subclass 500) visa.

5. The applicant arrived in Australia on 9 March 2013 as the holder of a Student visa (Subclass 570).  He said his intention at that time was to study a Diploma of English, and thereafter, a Diploma of Business Management.

6. He completed a Certificate III in English as a Second Language, then a General Intermediate English Certificate.  This was followed by an IELTS preparation course, and then a Certificate IV in Business.  Thereafter, he completed a Diploma of Management, an Advanced Diploma of Leadership and Management, a Certificate III in Commercial Cookery which was followed by Certificate IV in Commercial Cookery.  He told the Tribunal that he is currently enrolled in a Diploma of Hospitality and Management, which is due to be completed on 13 September 2019.

7. When asked by the Tribunal why he was enrolled in a Diploma of Hospitality and Management, he said that he wanted to open a Chinese restaurant in the capital city of his country.  He said that there has only been one such restaurant before and there were lots of tourists in the town.  He said Asian restaurants were not predominant in Macedonia, and that there was very authentic Asian cooking in Australia.

8. The Tribunal then asked the applicant to explain the change in the nature of his study.  He said that management courses will show him how to run a business, and that such courses take a long time to complete in Macedonia; apparently up to four years each.  He said that he wanted to open his own restaurant and work in the kitchen.  He added that he wanted to run the business, as well.

9. He explained that he had been working in five star hotels for about seven years.  Between 2005 and 2007 he worked for the Royal Caribbean Cruise line, starting in “accommodation, in shops, and in the bar.”  From 2007-2012 he moved employment to Princess Cruise lines where he worked in the food and beverage department, “handling food and drinks, maintaining premises (front of house and back of house) and as a bar tender.”

10. He said that he had completed study in Macedonia as an agricultural technician, and this was to a Diploma level.  He explained that it was a Diploma level course but had been conducted for four years, commencing when he was in high school.

11. He said that his immediate family in Macedonia consisted of his mother, father and brother. 

12. He said that his assets in Macedonia comprised a house which estimated to be of approximately A$150,000.00 in value. 

13. He said that he is currently working as a concreter earning approximately A$600.00 per week. 

14. He estimated that if he opened a restaurant in Macedonia, he would earn approximately €3,000 per month.

15. When asked if he could undertake a hospitality and management course in Macedonia, he answered positively.  Although he added that it would take approximately four years and a university level institution.  However, apparently one needs to complete vocational courses in hospitality and management at school level and then undertake diploma courses at a university.  He said that this would take approximately four years.

16. The Tribunal informed the applicant that it had read his statutory declaration dated 10 March 2019 and accepted the evidence in it. 

17. The applicant’s agent, Ms Stojanovsic, was invited to make any submissions.  She pointed out that she had provided a large volume of documents by email to the Tribunal (on 23 April 2019 at 1:52 pm).  The Tribunal invited Ms Stojanovsic to explain which documents she relied on and the relevance of those documents.

18. Ms Stojanovic referred to the applicant’s curriculum vitae dated 18 April 2019.  This document was consistent with the applicant’s evidence namely that he had worked in various hospitality jobs on cruise liners, had completed a variety of courses in Australia and had not worked in the agricultural industry.

19. Ms Stojanovic referred to two employment references (dated 21 April 2019 and 22 April 2019) which she said showed the applicant had some work experience in Australia and that he had worked in restaurants consistent with his desire to gain experience in the relevant field.  Again, this was consistent with the applicant’s evidence.  

20. In other respects, Ms Stojanovic asserted that the documents were all relevant to his claim.  However when pressed by the Tribunal, she did not go to particular documents.  Nonetheless, the documents variously comprise a Certificate IV in Commercial Cookery, a Certificate comprising a Diploma of Management, and a copy of the applicant’s passport. 

21. The applicant added that he did not continue with his Agricultural Technology qualification because he would have been required to attend the capital city in his country and he did not want to move.  He said he was abiding by the conditions of his visa and will complete the study.  The applicant’s migration agent continued by stating that although the applicant had undertaken a series of different courses, they were all related to his desire to run and operate a restaurant. When asked by the Tribunal why the applicant should be considered as a temporary entrant after six years in Australia, the applicant’s migration agent asserted that this was a reasonable time in which to undertake the study. 

22. The Tribunal invited the applicant to provide some evidence of the agricultural technician qualification which had been an important matter relied on by the delegate.  In particular, the delegate considered that undertaking vocational courses in Australia was a regression of study.  The applicant’s migration agent said that the information would be provided.

23. On 24 April 2019, the applicant’s migration agent provided a variety of documents, including:

    a.A Statement of Results of his subjects in his final year, which show that he undertook a variety of agricultural or horticultural subjects.

    b.A Certificate of Completion of ‘Basic Food Safety – Bar’.

    c.A Certificate of Completion of a course entitled ‘Creating a Strong Leadership’.

    d.A statement of the applicant’s results in a subject entitled ‘Orcharding’.

    e.A Certificate of Completion of a course entitled ‘Disciplining and Re-directing Employees’.

    f.A Certificate of Final Examination of the applicant which stated that he has acquired the secondary professional education of four years, ‘Agricultural Profession, Education Profile Agricultural Technician’.

    g.A Certificate of Training in a course entitled ‘Crowd Management Appropriate Training’.

    h.A Certificate of Completion in a course entitled ‘Basics of Effective Communication’.

24. In a further email dated 24 April 2019 (4.46pm), the applicant’s migration agent provided a further document said to be “the Macedonian copy of his year 12 certificate and results.” The document which it attached is in, apparently, Macedonian. 

25. The purpose of providing the documents was to corroborate the applicant’s evidence that his qualification as an ‘Agricultural Technician’, was of a vocational type and not a higher degree.  This was because the delegate’s decision, amongst other things, relied on evidence from the applicant that it was a higher degree:

    “The applicant has declared in their statement of purpose that they previously completed a higher secondary professional education (Degree) as an Agricultural Technician from Macedonia Board in 2002…” 

26. Amongst other things the delegate concluded:

    “The applicant has declared they previously completed a higher secondary professional education (Degree) as an Agricultural Technician in Macedonia... It is reasonable to expect that, given the applicant has completed an Advanced Diploma; a genuine student would maintain this level of qualification or progress to the higher education sector... The regression of studies raises real concerns…”

27. Whilst the document recording the applicant’s results in the final year of high school, do not conclusively prove that there was a Diploma level qualification as an Agricultural Technician, they are not consistent with a degree or certification from a tertiary level institution.  This, together with the applicant’s evidence, is sufficient for the Tribunal to conclude that the Agricultural Technician qualification was of a vocational nature only.  The other documents provided by the applicant’s migration agent, after the conclusion of the hearing, are to be taken into account but the Tribunal gives them little weight.

28. On 18 May 2019, the applicant's migration agent filed a written submission, together with 13 attachments. The submissions, which are undated, comprise 25 paragraphs. The submissions were not requested by the Tribunal, and not foreshadowed by the applicant or his migration agent, during the hearing. They were provided two weeks after the hearing had concluded. The submissions traverse a variety of matters, which were discussed at the hearing. The submissions made a number of points as follows:

    a.The applicant's Macedonian qualification was at a diploma level. The Tribunal accepts this, and it was dealt with by the earlier submissions from the applicant's migration agent (delivered after the hearing by agreement).

    b.The applicant has always worked in hospitality. The Tribunal accepts this. It was not a contentious issue in the hearing.

    c.The applicant owns property in Macedonia. This was uncontroversial evidence in the hearing.

    d.The applicant intends to return to Macedonia, and it would be difficult for him to raise funds to open a restaurant in Australia. This was the evidence at the hearing, and was uncontroversial.

    e.The courses which he has completed are generally consistent with a desire to run a restaurant. The Tribunal accepted this evidence.

    f.The applicant has completed a variety of courses in Australia. This was consistent with the applicant's evidence in the hearing, and is not controversial.

    g.An assertion that the applicant is not using the Student visa to maintain residency. This is consistent with the applicant's whole case, and the submissions of the agent, at the hearing. It does not need to be repeated.

    h.The applicant is currently enrolled.  This was not controversial, and is the subject of evidence at the hearing.

    i.The applicant has undertaken relevant work experience in Australia. This was the subject of evidence, and is not controversial.

    j.The applicant would have to undertake long courses, albeit equivalent, in Macedonia, compared to those in Australia. This was the subject of evidence and submissions, at the hearing.

    k.The applicant has an American visa. This is said to be relevant to his intentions not to stay in Australia. This was the subject of evidence and submissions at the hearing. The Tribunal gives this little weight.

    l.The Tribunal has taken into account the further submissions.

29. As an aside, it is unhelpful to receive lengthy, unsolicited submissions and documents, long after the hearing is concluded. This is especially so when they do not articulate new or different points.  This is a practice to be discouraged.

30. In considering whether the applicant met the genuine temporary entrant criterion, the Tribunal had regard to the following factors, consistent with cl. 500.212 and Ministerial Direction No. 69.  The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

31. The Tribunal has considered the applicant’s circumstances in his home country.  The applicant is 35 years old from Macedonia.  The applicant has provided evidence of social, direct family and financial ties to his home country, or other economic incentives to return.  When considering the applicant’s circumstances in his home country, the Tribunal finds that he has been able to demonstrate significant ties, to act as an incentive to return to his home country, at the completion of the proposed study.

32. The Tribunal has considered the applicant’s potential circumstances in Australia.  The applicant first arrived in Australia on 9 March 2013, as a holder of a Class TU Subclass 570 Student visa.  The proposed study would extend the applicant’s stay until at least September 2019.  The Tribunal considers that the length of this proposed additional stay creates serious concerns that the applicant is utilising the Student Visa Programme to prolong his stay in Australia.

33. The Tribunal places little weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.  The applicant initially applied to study a Diploma of Business and Management in Australia, which was inconsistent with the Agricultural Technician qualification he already holds from his home country. 

34. The Tribunal has considered the applicant’s study history since that time, namely that the applicant has completed two English language courses, a Certificate IV in Business and a Diploma in Management, an Advanced Diploma of Leadership and Management, Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery.  The disparate nature of the subject matter and the time taken to study is not consistent with the conduct of a genuine student.  Further, the courses undertaken are all inconsistent with the study previously undertaken in Macedonia.  Although in that regard the applicant said he had never worked in agriculture and has always worked in hospitality.  The Tribunal accepts this evidence.  However, it is the disparate nature of the study, which is of significant concern to the Tribunal.  It was said by the applicant’s agent that all the courses related to hospitality and that the applicant had always worked in hospitality.  Certainly the applicant has had a very long working career in many aspects of hospitality.  Whilst the long experience would be a useful background upon which to embark on a restaurant ownership business, the study of the area for a further six years does not seem necessary to the Tribunal’s mind.  Rather, the long period of study is suggestive of a person who is studying for a purpose of remaining in Australia for as long as possible.

35. The Tribunal accepts that the applicant wishes to open a restaurant in Macedonia, but is not convinced that any further study is required, having regard to the study completed, and the applicant’s extensive work experience in a variety of hospitality roles and environments.

36. The Tribunal notes that the proposed course plan is inconsistent with the applicant’s education history.

37. The Tribunal is not satisfied that the applicant has established that further study will provide him with significant benefit in his proposed career plan, considering the cost of the study, and the fact that he already holds a variety of relevant qualifications.  The Tribunal is therefore not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future, beyond the qualifications he already holds.

1. The Tribunal has given regard to the applicant’s immigration history.  The applicant arrived in Australia on 9 March 2013 as the holder of a Subclass 570 Student visa.  Since then, the applicant has undertaken and completed eight courses and is currently enrolled in a ninth course.  This is not the conduct of a genuine temporary entrant.  The Tribunal has also considered that the grant of the TU 500 Student visa would bring their total period of stay in Australia to about 6 years.  The length of his study plan creates serious concerns that the applicant is utilising the Student visa programme, as a means to prolong his stay in Australia, and that the applicant is not a genuine temporary entrant.

2. The Tribunal has given regard to whether there is any other relevant matter.  The Tribunal finds that there are no other relevant matters to consider, that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

3. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in Macedonia; political or civil unrest circumstances in Macedonia; remuneration the applicant could expect to receive in Macedonia or a third country compared with Australia; circumstances in Macedonia relative to Australia or any other country; and the applicant’s circumstances in Macedonia, relative to others in that country.

4. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

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

6. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

7. 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

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

Peter Booth
Member