Nandal (Migration)

[2019] AATA 156

Nandal (Migration) [2019] AATA 156 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manjeet Nandal
Mr Amarender Singh

CASE NUMBER:  1617182

HOME AFFAIRS REFERENCE(S):           BCC2016/2824300

MEMBER:Justin Meyer

DATE:24 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 24 January 2019 at 3:28pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – protracted study history – growth in industry – ability to gain employment with current qualifications – secondary applicant – unable to meet conditions – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499

Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.311

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 7 October 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 of serious concerns regarding her intention to return to India upon completion of the studies and they were not genuine temporary entrants.

4. The applicants appeared before the Tribunal on 29 March 2019 to give evidence and present arguments.

5. The applicants were 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 applicants are genuine temporary entrants to Australia as students.

   Genuine applicant for entry and stay as a student (cl.500.212)

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.

   Does the applicant intend genuinely to stay in Australia temporarily?

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.

    Background

11. At hearing the primary applicant confirmed that she arrived in Australia in 2013, as a 20 year old. She had a school education from India.

12. Further, the primary applicant gave evidence that she first arrived in Australia to study a Diploma in IT.

    Applicant’s Study History

13. The primary applicant provided evidence to the Tribunal of the following qualifications since arriving in Australia:

    ·She lodged a student visa application on 25 August 2016 and provided Confirmations of Enrolment (CoEs) to undertake the following courses of study in Australia:

    -Certificate IV in Commercial Cookery course at Stott's College.

    -Diploma of Hospitality course at Stott's College.

    -Bachelor of Business course at Stott's College.

    -Completion of a Certificate III in Commercial Cookery course in Australia, August 2016.

    -Completion of a Diploma of Management course in Australia, June 2015.

    -Completion of a Diploma of Information Technology course in India during August 2011.

    -An IELTS Test Report Form document for English language test on 13 December 2014 with a score of 6.5.

14. The applicant provided a current Certificate of Enrolment for Academies Australasia Polytechnic Pty Limited (trading as: AAPoly, AMI Education) for a Bachelor of Tourism and Hospitality Management. The course start date is 12 November 2018 and the end date is 10 July 2020.

15. While the Tribunal allows for reasonable changes in a person’s career and study path when considering the genuine temporary entrant criteria, the applicant has a particularly long and protracted history over five years, shifting from IT to Commercial Cookery studies to business and management and hospitality courses.

16. The Tribunal asked the primary applicant why there had been such significant changes in her study history and career goals.  She responded that she was planning to use the qualifications for working in a hotel in India and then start her own business – a restaurant and sweet shop.

17. The hotel had offered her work once she finishes her present course. It is a mid-range hotel in her home area of Ladwa. A letter offering conditional employment was enclosed – dependent on her completing her course and gaining work experience. This was the first step of a two-step plan – the second being setting up the business.

18. The Tribunal keeps in mind that the applicant worked at an Australian hotel in Brisbane in a more elementary role.

19. The business plan is a detailed document in the names of both applicants to open a business called Nanda Sweets and Restaurant in Haryana, India. It will be a reasonably priced 40 place restaurant offering family style food and service. Traditional Indian cuisine is including Punjabi and South Indian dishes along with Continental food will be on the menu. The restaurant will be family-owned. It will be a 850 ft.² space located at a particular location in Ladwa. The location was previously leased to a Punjabi restaurant. Opening hours are included, and a target of prime cost ratios lower than 65% is mentioned. The restaurant will be open seven days a week start-up costs are detailed there is mention of daily inventory tracking and administrative systems including cash control and a cost report.

20. The Tribunal contemplated all of these plans and accepts that they are plausible. However the Tribunal put to the primary applicant that with the significant number of qualifications that she has in related areas, she could be able to fulfil her goals now. She replied that whilst she could go to work in the hotel in India that it offered her employment, she required the education that she is currently undertaking to commence the business. The Tribunal contemplates that the primary applicant has a number of skills, work experience and life experience that would enable her to fulfil her business goals as described. The Tribunal considers her cookery course and hospitality courses along with her business course to be ample experience and qualification to commence her sweets and restaurant business.

    Ties to India

21. At hearing the applicant submitted that she has the following ties to her home country - her family her husband’s family reside in India. Her family plan to assist her in running her business and supporting her and her husband and her children. The Tribunal notes that the parties have a child in Australia. The Tribunal notes that the primary applicant’s evidence was that her brother has a cattle farm in India. Her husband has a dependent visa attached to her. Her claim is that the value for overseas qualifications is high in India as well. She would improve her level of qualification and ability to be a restaurant manager if she completed the course.

22. The parties have one child together and were expecting another child. Articles were submitted about the growth of the tourism and hospitality industries in India that there was an energetic drive for overseas-qualified persons in India. This was put to be an incentive to return to India. It was submitted that hospitality and management cannot be separated they are related to one another. It was submitted that it is challenging in a male-dominated society are for a woman to make a career path in this field. However her academic progress and genuineness is indication of a desire to return an open the business.

23. The Tribunal notes that the parties have family ties and have travelled back to India for this purpose – this weighs in their favour.

24. The tribunal considered the secondary applicant’s evidence which as corroborative of the primary applicant’s points.

25. There is no military commitment or unrest evident in the home country. The economic situation in India poses no issues to the Tribunal. The immigration history of the applicant is considered and does not trouble the Tribunal. There is no student guardian visa matter before me.

26. On balance the Tribunal is not satisfied that the applicant is a genuine temporary entrant. The applicant may well have struggled with certain subjects and her earlier direction. However, her plans for the future could be satisfied with the present level of education (ie on the date of his completion of her qualification in 2017). She could have departed then to fulfil her dream and goals. The applicant holds a degree, has family who are experienced in business and knows some skills helpful to opening a restaurant and running it. She could barely identify which subjects in particular she was still to do that were conditions precedent of fulfilling her goal. Whilst it is a sign of commitment that the applicant would overcome obstacle as a woman in business it still does not weigh against the fact that she is currently ready to commence. The potential of the sector in India is acknowledged but I arrive at the same conclusion nonetheless.

27. The Tribunal does not view it as necessary for the applicant to have a Bachelor of Tourism and Hospitality Management as is being studied now to achieve this goal.

28. The Tribunal finds that with family financial assistance and business know-how, combined with other qualifications, the applicant could set up a sweet and restaurant business without the qualification she is currently working towards.

    Findings

29. On the basis of the above, the Tribunal finds that the applicant has a protracted study history that is comprised a number of courses. The Tribunal is not satisfied that the applicant was able to present any reason why she requires a further qualification to be able to create the business she desires when she returns to India. Further, the applicant has not been able to satisfy the Tribunal that her ties to India are such that they outweigh the issues with her other evidence.

30. On balance, 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.500.212(a).

31. 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.

32. Accordingly, the decision under review must be affirmed.

    Decision secondary applicant Mr Amarender Singh

33. In this case, I am not satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:

    500.311
    The applicant is a member of the family unit of a person (the primary person) who holds a student
    visa, having satisfied the primary criteria for that visa, and either:
    (a) the applicant became a member of the family unit of the primary person before the grant of the
    student visa to the primary person, and was included in:
    (i) the primary person’s application under subregulation 2.07AF(3); or
    (ii) information provided in relation to the primary person’s application under subregulation
    2.07AF(4); or
    (b) the applicant became a member of the family unit of the primary person:
    (i) after the grant of the student visa to the primary person; and
    (ii) before the application was made.

34. The primary applicant Manjeet Nandal has not satisfied the criteria to be granted a Student visa, therefore the secondary applicant does not meet 500.311.

    Concluding paragraphs

35. The Tribunal has found the applicant does not meet an essential requirement of cl.500.212. 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

36. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Justin Meyer
    Member