Sharma (Migration)

[2020] AATA 5220

Sharma (Migration) [2020] AATA 5220 (25 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aashik Sharma

CASE NUMBER:  1915231

DIBP REFERENCE(S):  BCC2019/1389676

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         25 November 2020 at 11:52 am (VIC time)

DATE OF WRITTEN RECORD:                30 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 30 November 2020 at 4:44pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – multiple courses not completed – reasons for studying in Australia – family relationships in home country – work, sporting and community activities in Australia – physical health and treatment – enrolment in lower-level courses – relevance of current course to business plans – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 June 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 25 November 2020 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, a person must be a genuine applicant for entry and stay as a student, having a genuine intention to stay in Australia temporarily.  The applicant must also intend to comply with any conditions, subject to which the visa is granted.  This is known as the genuine temporary entrance criterion under clause 500.212. 

4. You applied for this student visa on 19 March 2019.  Your application was refused by the Ministerial delegate on 5 June 2019.  I am not satisfied after considering your circumstances, immigration history and other relevant matters that you met the genuine temporary entrant criteria and requirements.  They would not satisfied that your study plan would assist you in obtaining employment or improving your employment prospects, that had significant incentive to return to your home country of Nepal, or that you have demonstrated substantial economic ties or personal assets there.  They had serious concerns about your true intentions in Australia.  They were concerned about your immigration history and the value of the course to your future, and they formed the view that you were using the student visa to maintain ongoing residence in Australia.

5. You applied to have that decision reviewed by this tribunal.  As was explained in that primary decision when considering whether someone is a genuine student it is necessary for decisionmakers to have regard to the factors set out in the Ministerial direction number 69.  These issues were discussed in the primary decision and they include your circumstances in your home country, potential circumstances in Australia, your incentive to stay in Australia or return home, whether you are using the student visa program to maintain ongoing residence in Australia, the value of your courses to your stated business or career goals, your immigration history and any other relevant matter.

6. It is not intended as a checklist but as a guide for decision makers in considering whether an applicant, on the whole, meets the genuine temporary entrant requirement.  The role of the tribunal is to take a fresh look at your application and to consider your circumstances against those issues in direction number 69.  The tribunal needs to be satisfied that you are a genuine student who genuinely intends to stay in Australia temporarily. 

7. The primary decision and its references to direction number 69 clearly put you on notice about the issues as to whether or not you are genuine temporary entrant.  The tribunal sent you an invitation to attend today’s hearing on 10 November 2020.  That indication specifically refers to direction number 69 and a copy of it was attached or accompanied the invitation sent to you.

8. You provided the tribunal with a number of documents which includes the following, a completed section 359(2) questionnaire, which contains the requested student visa information, a copy of your current enrolment, a letter from Skyline International College, dated 18 May 2018 confirming that you were enrolled and completed a Diploma of Leadership and Management, a statement of attainment in relation to a Certificate IV in Business and this is the actual certificate for that Certificate IV course, a Certificate of Completion of the Diploma of Leadership and Management, a transcript from Charles Sturt University in relation to a Graduate Diploma of Commerce which was not completed, a student medical certificate dated 24 February 2014, which states that you were severely affected by a medical condition that affected your attendance at classes, participation in fieldwork, completion of assignments and sitting exams.  A copy of your passport, a statutory declaration from you dated 18 November 2020, a copy of your academic results for the advance diploma course which was issued on 16 November 2020 and a copy of a letter from your general practitioner dated 19 (indistinct) 2020.  It states that you are taking medication for a medical condition, that you suffer from a chronic health condition which is permanent in nature and will exist for the rest of your life.  It has stabilised by medication and by specialist care.

9. The tribunal has taken all of these documents into consideration, along with the evidence that you gave at the hearing today.  It has also taken into consideration a copy of the documents contained in the department’s file.  The hearing was conducted today by telephone due to the COVID-19 restrictions.  You were represented at the hearing by your registered migration agent.

10. At the hearing your agent made the following submissions:

    ·     that the tribunal should take into account the difficult times that you have experienced over the last few years due to your ill-health and your parent’s separation and difficulties.  

    ·     It is your intention to become involved in the hospitality industry in Nepal and that the Leadership and Management Advance Diploma is not relevant to your future plans and it was submitted that this course is highly relevant as you need to learn how to manage staff who, in turn, will help you run the restaurant.

    ·     Your parents are both 60 years old.  Your sister is getting married and your brother currently lives overseas. 

    ·     It was stated that your intentions for the future are to return to Nepal, start your restaurant business and start a family. 

    ·     It was also submitted that there is no reason to believe that you will not return to Nepal.  You will complete your studies in approximately five months, and you don’t want a negative visa history that could affect your ability to travel to other countries. 

11. The tribunal has had regard to these submissions, in addition to the evidence before it. 

12. You are currently 30 years old and are from Nepal.  You arrived in Australia on 4 August 2013 and you have been in Australia since that date on student visas until most recently after your student visa was refused.  You have been on a bridging visa.  You have now been residing in Australia for over seven years.  During that time, you have been enrolled in a number of courses, the majority of which you have not completed.  This includes the following courses that were not completed, a Master of Commerce, a Graduate Diploma of Commerce, a Diploma of Business Administration, Advance Diploma of Accounting, Diploma of Accounting, Certificate IV in Accounting, Certificate IV in Business, a Diploma of Business.

13. You have gone on to complete the following courses, Certificate IV in Business which you completed in March 2019 and a Diploma of Leadership and Management which you completed in April 2020.  You have provided evidence that you are currently enrolled and studying an Advanced Diploma of Leadership and Management which commenced on 14 April 2020 and will end on 12 April 2021.

14. These studies mean that your time in Australia will be extended from today for a further – approximately six months.  If your application for student visa is granted, the total amount of time you will have spent in Australia on temporary visas will be just shy of eight years.

15. The tribunal turns to consider Ministerial direction number 69.  In relation to why you are not undertaking these studies in your home country you said in your questionnaire that being in an English-speaking environment allows you to hone your skills and become more confident.  That, unlike in Nepal, there is a strong emphasis on the practical aspect of education which, in turn, helps produce industry-ready graduates.  Whereas, in Nepal, there is a focus on memorising the theoretical aspect of study.

16. You said Australian education encompasses all facets of education, such as personal development, group studies, industry engagement, and you gave the example that you get to have an opportunity to study with other people from various countries, which helps you have a cross-cultural awareness.  Such a benefit does not exist in Nepal.  You also said that you get to apply your learnings in the actual working environment by working part-time, that there is a huge difference in the work ethic between Australia and Nepal and you hope to be able to take all the positives from Australia and apply them to the restaurant business that you will be starting in your home country of Nepal. 

17. The tribunal accepts that there is a difference in the teaching styles and the type of education that’s provided between Australia and Nepal, that there is a difference in the practical versus theoretical studies in those two countries.  For this reason, the tribunal considers that you do have sound reasons for not undertaking study in your home country.

18. In relation to your personal ties to your home country, the tribunal notes that you stated that your parents and your sister all reside in Nepal, whereas your brother lives overseas in Thailand.  You said that you were in contact with your siblings and your parents almost twice or three times a week, especially your mother, and that you contact them through Facebook Messenger, or Viber.  You are very close to them and especially to your mother and you call her more often.  At the hearing you said that you are still in contact with both your parents, your mother twice a week and your father less often as he has remarried.  You confirmed that your brother is living in Thailand and even when he was in Nepal he was not heavily involved in the family.  Your sister is about to get married. 

19. In the information provided to the department there is reference to a family member who had a heavy influence on you when you were growing up and this is what you attribute to the personal difficulties that you faced, in terms of your shyness, and lack of confidence.  The tribunal understands this to be a reference to your father.

20. The tribunal accepts that you are close to your mother, particularly given the fact that there have been problems in the relationship between your mother and father over a number of years and that they are now separated and commencing divorce proceedings.  The tribunal accepts that you do have personal ties to your home country, however, it is clear that you have been able to maintain these relationships with your family over the course of the last seven years whilst living in Australia.  It is significant that you have not returned to your home country in the last seven years to visit your family, even when you were experiencing personal difficulties with your own health and whilst there were ongoing issues with your parent’s marriage.

21. In addition to the family there is also reference in your questionnaire to and also your statutory declaration to you being a sports enthusiast and that being a shy person sporting activity were a means of expression for you.  You loved lots of sports and a particularly involved in cricket.  In particular the Baluwater Cricket Club and Shangrila Cricket Club in Nepal.  You had developed a desire to represent your country and a few years later after you developed that desire you ended up as one of the players for the Age Group National Cricket Squad and you were pleased to be representing the National Cricketing Community as well as the regional and local community.  Since you have come to Australia you have also continued your interests and ties to sporting communities here in Australia.  Taking this into account the tribunal does not consider that your sporting activities would be a significant incentive for you to return to Nepal, given that you are actively involved in sporting communities in Australia.

22. As already mentioned, the tribunal is not convinced that having family in Nepal is a significant incentive for you to return to your home country, as you have been able to maintain contact with your family members whilst residing in Australia for a significantly long period of time. 

23. In relation to your economic circumstances it does not appear that you own any assets or property yourself.  You have been working as a kitchenhand and then subsequently as a chef at Coogee Diggers RSL for just under two years in Australia.  Prior to coming to Australia, you did not have a long work history in Nepal.  It is noted that you worked for approximately one year as an assistant marketing manager for an international development company, earning around $3,500 Australian per annum.  The tribunal is not convinced that your economic circumstances would be a significant incentive for you to return to your home country.  It has arrived at this finding despite your evidence that you intend on returning to Nepal to start your own restaurant.

24. You have stated in your questionnaires that you do not have any concerns about military service, commitments or political or civil unrest in your home country and the tribunal has taken this into account and makes no finding that you would be using this student visa to avoid such matters.

25. The tribunal has also had regard to your potential circumstances in Australia.  You do not have any family members in Australia, however you have been residing in Australia now for over seven years and during that time you appear to have had steady employment up until recently since your visa was refused and you have been on a bridging visa that does not permit you to work.  Most recently you were working as a chef at the Coogee Diggers RSL and you were earning approximately $25,500 Australian per annum in that role.  This is now the area in which you say that you would like to develop a career in, in your home country.  You want to start your own restaurant.

26. Apart from employment, whilst you do not have any family members in Australia, you do have ties to the community.  You have ties with the sporting communities, such as various cricket clubs in Australia and there is also a Nepalese Cricket Association of Australia.  However, you have said that you are not an active member because of health reasons and other priorities.  Nonetheless, being a member of such clubs would provide you with a level of support and social contact in Australia and does represent a tie to Australia.  It is something that you were interested in in Nepal and it is something that you have been able to maintain interest in and involvement in in Australia.  The tribunal considers that given that you have been residing now in Australia for seven years, without once returning to your home country, that your employment and community ties do represent a personal tie to Australia that may be an incentive for you to not return to your home country.

27. Furthermore, the tribunal has taken into account the evidence that you have given in relation to your medical condition and health issues that you have been experienced shortly after arriving in Australia.  You have given evidence in your statutory declarations and at the hearing, as well as in the questionnaire that shortly after arriving in Australia you experienced health difficulties a few weeks after you arrived in Australia.  You started suffering from severe pain in various joints of your body, including your lower back, groin, elbows and neck.  You sought medical help from a GP and subsequently from a specialist.  It was a two-year long process of diagnosis and management of your pain until you got this under control.

28. You have stated that you have been diagnosed with ankylosing spondylitis at the hearing you referred to suffering from arthritis.  You said that this disease cannot be eradicated.  It can only be managed, and that the diagnosis process was very lengthy.  You found it impossible to concentrate on your studies because of the pain that you were in and you felt shattered by acquiring a chronic disease at the age of 23.

29. You said this was a terrifying experience for you as you have never been away from home, especially from your mother.  All of your life you were cared for by your mother and you missed her presence terribly.  The medical condition caused pain, and which took its toll on your mental health as well and because you did not have any close relatives here that you could rely on for support you had to do everything alone.

30. Due to your ill-health you couldn’t continue to play cricket, which also increased your stress levels.  You said you found it very difficult to keep up with your studies.  It was a very stressful time and you were not doing well with your studies.  You decided to drop your Masters degree down to a less stressful course in terms of the workload and effort required to complete the course.  You decided to do a Certificate IV and Diploma in Accounting, however, it is noted that you did not complete either of those courses. 

31. The tribunal considers that your behaviour over the last four years from 2013 until 2017 is not consistent with a genuine student.  You said at the hearing that you did not return home while you were well over those years because you were consulting with your doctors here and you believed that you would receive better medical attention here, rather than in Nepal.  And you also said that you were still trying to study.  The tribunal considers that during the four years from 2013 until you commenced the Certificate IV of Business in 2018 is a significantly long period of time to have been attempting to study and to obtain medical attention here.  The tribunal considers that you were motivated during that time to remain in Australia for the medical attention that you were receiving here and that your study history shows that you were unable to complete any course during that time.  If you were that unwell and were struggling to study, it would have made sense for you to return to your home country so that you could receive a treatment and recuperate appropriately before resuming your studies.

32. The tribunal considers that your enrolment in the various courses that you did not ever complete from 2013 to 2018 suggests that you were more interested in remaining in Australia for medical attention, than passing courses, and that you were using the student visa to maintain ongoing residence during those years.  The tribunal considers that if you were so ill and unable to concentrate on your studies the logical thing would have been to return to your home country and recuperate.  Instead, you maintained ongoing residence in Australia and did not complete any course during that time.

33. Since you have resumed your studies you have gone on to complete a Certificate IV in Business and a Diploma of Leadership in Management.  Your career goal has changed to you wanting to start your own restaurant.  The tribunal considers this largely because of your employment that you held in Australia – originally as a kitchenhand, but then as an unqualified chef working under what you describe as a good chef in the kitchen for approximately two years. 

1. This was a part-time role and the tribunal is concerned about the length of time that you have, in fact, worked in the hospitality industry.  Nonetheless, you now say that it is your intention to run your own business.  It is noted that you have not undertaken any cooking course or hospitality management course in Australia, despite the change in your focus.

2. The tribunal considers that the change of focus in your goals is because of the work experience you’ve gained in Australia, rather than any course that you’ve been studying during your time here.  The tribunal has considered the evidence overall, taking into account the medical issues that you are facing.  You were also experiencing difficulties with your parents’ relationship and their being in an on and off separation which your representative described as being culturally different to what Westerners would understand as separation and divorce.  However, you confirmed at the hearing, that these relationship problems between your parents have been going on and off for a number of years, from when you were younger, prior to when you came to Australia.  The tribunal finds it difficult to accept that such an ongoing problem that was in existence prior to you coming to Australia would have had an effect on your ability to focus on your studies, given that you are so far removed from your parents and that you were only in contact with them approximately two times a week.

3. The tribunal has taken all of this into account and considers that there is strong evidence that you are using the student visa program to maintain ongoing residence in Australia and that in doing so you are attempting to circumvent the intentions of the Migration program.

4. In relation to the value of the Advance Diploma of Leadership and Management course to your future, you have told the tribunal that it is your plan to start a restaurant when you return to Nepal.  In your questionnaire response, you have stated that it is your ultimate goal to open a restaurant for yourself in Kathmandu when you return home. 

5. The course that you have been taking for the last two years and the one you are currently undertaking are aligned with your goal of opening a restaurant in Nepal.  During your time in Australia you have said you have been able to work in a couple of restaurants, have gone on to become a chef, and that during your time working in a kitchen you’ve come to understand various techniques, technical aspects of being able to run a commercial kitchen successfully.

6. You want to be able to blend all your technical knowledge of cookery and hospitality with the business and leadership knowledge that you have learned from the various courses.  You have stated that you’re studying the Advance Diploma course because you want to strengthen your skills, having already completed the Certificate IV in Business and Diploma of Leadership and Management course, these have had a significant impact on your life.  You have learned various things and become more confident.  You want to continue to upskill yourself for one more year before returning to Nepal permanently.  The ideas learned through these courses will prove fruitful when you start your entrepreneurial journey in the future in Nepal.  You also described reasons why Kathmandu is the perfect location for the restaurant that you intend on opening.  In your statutory declaration you also stated that you have needed to learn business management.  You also stated that you have needed to learn business management and leadership skills so that you can demonstrate good quality leadership and business management.

7. You’ve repeated the same reasons in your statutory declaration as in the questionnaire about Kathmandu being the perfect location for your restaurant.  You were asked questions by the tribunal as to why you were not studying cooking or hospitality courses if this was what you’re interested in.  You told the tribunal that you are very shy and that you have been working in a commercial kitchen with a good chef.  The Advance Diploma is good for your personal growth and you have always been, had a keen interest in the front of house side of the business, of restaurants.  You want to open your own restaurant and you will hire appropriate staff to help you run the restaurant. 

8. The tribunal has considered whether or not the proposed course is consistent with your current level of education.  The Advance Diploma of Leadership in Management is the highest course that you will be studying at after completing a diploma and Certificate IV course, however, it is not the highest level at which you have been enrolled in during your time in Australia.  You have also attempted to complete a Master of Commerce and a Graduate Diploma of Commerce, neither of which you completed.  Prior to coming to Australia, you completed a Bachelor of Business Studies in 2011 in your home country.  The tribunal does not consider that studying at the Advance Diploma level of let alone the diploma and Certificate IV level, particularly with a focus on business and management is consistent with your current level of education, taking into account the qualification that you have obtained in Nepal prior to coming to Australia.

9. The tribunal finds it difficult to accept that leadership and management courses and a Certificate IV in Business will assist you in opening and running a hospitality business in your home country.  You appear to be relying on the fact that you have worked in a part-time capacity in a commercial kitchen in Sydney for approximately 18 months and prior to that you were a kitchenhand for 11 months. 

10. That is the extent of your hospitality and cooking experience.  The tribunal considers that studying business and leadership and management have only a minor level of relevance to running a restaurant.  It does not consider that these courses are relevant to your previous work experience in Nepal, prior to coming to Australia.

11. The reason why the tribunal does not consider that these courses will be of great assistance to you in running a restaurant, let alone finding employment as a chef or a restauranteur in your home country is based on the limited work experience that you have without any relevant qualifications in commercial cooking or hospitality management.  There is a vast difference between working back of house for a couple of years, compared to knowing how to manage the front of house, and overall running an entire restaurant.  The business of restaurants and hospitality-related businesses is a distinct and specialised field which is reflected in the fact that there are hospitality management courses and degrees taught around the world.  They teach students the necessary skills to run and operate hospitality businesses, including restaurants.  It’s for these reasons the tribunal is not convinced that an Advance Diploma of Leadership and Management or a Certificate IV in Business or a Diploma in Leadership and Management are going to help you learn the skills and knowledge in order to manage staff and a restaurant.  If all you’re going to be doing is hiring staff who are going to run the business for you it is difficult to see how these courses are going to be of great assistance to you.  Even doing that does require a good knowledge of how, not only kitchens operate but as a whole restaurant operates.

12. It follows for those reasons that the tribunal does not accept that qualifications from these courses will assist you or by increasing the remuneration you can expect to earn in your home country or a third country compared to what you are receiving in Australia. 

13. Lastly, the tribunal takes into account your immigration history.  There is no evidence that you have any other Australian Visa applications pending where a decision has not been made.  There is also no evidence that you have ever been refused a visa or had a visa cancelled by any other country.  You submitted and requested that the tribunal remit the application back to the department for one of the reasons, including that you did not want a negative visa history that could affect your ability to travel to other countries.  While the tribunal takes that into account, it is not persuaded that that alone is a sufficient reason to not affirm the delegate’s decision before it. 

14. You have now been in Australia for well over seven years, and during that entire time, you have not once left Australian shores.  This is despite the difficulties that you were having with your health and the asserted difficulties in your parents’ relationship and the family problems that you are experiencing.  As already stated with such difficulties the tribunal considers that the logical thing for you to have done would have been to return to your home country and to come back to Australia to pick up your studies once you were physically and mentally able to.

15. You did not do that.  Instead, you remained onshore to receive medical attention for four years whilst not completing any course of study.  The tribunal considers that you have been using the student visa program to maintain ongoing residence in Australia for a significant period of time.  You are now enrolled in a number of short courses as the diploma and Certificate IV have been also.  This is compared to the lengthier courses that you were previously enrolled in but did not complete. 

16. There were no other relevant matters for consideration raised by the applicant. 

17. Having considered your circumstances as a whole, including the issues in direction number 69, the tribunal is not satisfied that you are a genuine student, who genuinely intends to stay in Australia temporarily.  Therefore, the tribunal finds that you do not meet clause 500.212. 

18. It is therefore the decision of this tribunal to affirm the decision under review. 

    DECISION

19. The Tribunal affirms the decision under review.

    Elizabeth Tueno
    Member