SHRESTHA (Migration)

[2018] AATA 5436

SHRESTHA (Migration) [2018] AATA 5436 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Anita SHRESTHA
Mr Sujan Raj Shrestha

CASE NUMBER:  1711987

HOME AFFAIRS REFERENCE(S):           BCC2017/1218066

MEMBER:Gabrielle Cullen

DATE:1 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 01 November 2018 at 10:22am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student who intends genuinely to stay in Australia temporarily – change in career direction and study area – personal ties to home country– committed to current study in Australia –decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 24 May 2017 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 30 March 2017. 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 first named applicant (the applicant) arrived in Australia as a dependent on a student visa on 21 January 2009 valid to 11 August 2010. She separated from that husband after their arrival in 2010. She then applied for a student visa in her own right on 29 October 2010 and following a decision in her favour by the Migration Review Tribunal as to whether she met the financial capacity requirement she was granted a student visa to 8 August 2014. She then applied for and was granted a further student visa to 17 April 2017. Since her arrival in 2009 she has departed Australia from 23 November 2014 to 21 December 2014 and 20 march 2016 to 12 April 2016.

4. She married the second named applicant in Nepal and he is with her in Australia on a temporary visa. He arrived in Australia on 30 October 2016.

5. Certificate of Enrolments attached to the applicant’s current application refer to the applicant studying a Certificate IV in Commercial Cookery followed by a Diploma of Hospitality Management from November 2016 to April 2019. The evidence indicates that she has successfully completed the Certificate IV in Commercial Cookery and is attending and studying the Diploma of Hospitality Management. At hearing she was able to provide evidence consistent with independent information as to the course from the education provider as to details of this course, including subjects she is enrolled in. The Tribunal accepts she is studying, attending and successfully completing these courses.

6. The evidence at the time of this decision, from the applicant and the Department decision indicates the following study record prior to her application.

   ·Diploma of Website Development from February 2016 to October 2016 when she left the course. The evidence submitted indicates she partially completed the course

   ·Certificate IV in Web based Technologies from February 2015 to February 2016 which she successfully completed.

   ·Certificate II in Information Digital Media and Technology from August 2014 to February 2015 which she successfully completed

   ·IELTS Preparation course from July 2013 to June 2014 which she successfully completed

   ·English course from December to March 2011 which she successfully completed.

7. To the Department she provided  a statement  outlining the following:

   ·While there are Bachelor of Hospitality courses in Nepal there are none that offer specialised cookery courses, particularly of the standard in Australia.

   ·She has close family ties in Nepal; her two brothers operate shops in Nepal. One sister lives in Canada and her other siblings and mother live in Nepal. She is very close to her family and has visited them twice.

   ·The applicant has been working as a catering assistant since September 2015. With Australian cooking qualifications and her current experience she would be ahead of other candidates looking for a similar role in her home country. She will have a competitive advantage on return.

   ·She has been studying consistently while in Australia. She has not breached any condition of her visa and plans to return home on completion of the course.

   ·Whilst working at Hurstville Private Hospital in catering she has developed a passion for food and cooking. She wants to develop her skills and enhance her knowledge in cooking to become a successful Chef when she returns to Nepal. Nepal welcomes many tourists and has many hotels and restaurants and she believes she will be in a better position for employment with formal education.

   ·Her two brothers our entrepreneurs and she is open to setting up her own restaurant and running it as a family business.

8. The applicant also provided a letter from Hurstville Hospital dated 13 April 2017 advising she works in their catering Department and has done so since 20 September 2015. The letter states the applicant is a strong member of the team.

9. The delegate decided to refuse to grant the visas on 24 May 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student. He was concerned as to why the applicant was now studying cookery, having completed a Bachelor of Business in Nepal in 2005 and web based courses. The delegate was also concerned at the length of time she had spent in Australia.

10. On 6 June 2017 the applicants lodged an appeal to the Tribunal and attached the decision of the Department.

11. On 17 August 2018 the Tribunal wrote to the applicants and invited them to attend a hearing on 13 August 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show her past studies in Australia. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

12. Prior to the hearing she provided the following additional information summarised as follows:

    ·An additional letter from Hurstville Private Hospital dated 6 September 2018 indicating she still works there and has taken an additional role as cook since September 2017.

    ·Evidence of her family living in Nepal.

    ·The applicant’s mother and brother own property in Nepal and she provided evidence of this. Her father-in-law has properties of substantial value in Nepal and she provided evidence of this.

    ·She claims completion of a Bachelor of Hotel management or Master would be too high level course and is not relevant to a small business owner of a restaurant café.

    ·She has been working in a commercial kitchen for almost three years and has obtained the Certificate IV in Cookery. She has then enrolled in the Diploma of Hospitality and will complete it in April 2019. She plans to return home on completion of this course.

    ·Her study is a logical step forward from her previous course and current employment.

    ·The applicant has one sibling in Australia. Her husband is in Australia with her but also on a temporary visa

13. The applicants appeared before the Tribunal on 13 September 2018 to give evidence and present arguments.  They were assisted with an interpreter by phone in the Nepali and English languages. Her representative did not attend the hearing.

14. The Tribunal questioned the applicant as to her study history and questioned the applicant as to why she studied web design and then changed to cookery. She said she studied web design as she wanted to help her family business but while studying she started working in cooking for Hurstville Hospital and decided to change to cookery and hospitality. She said her aim is to return home and open her own restaurant business. The Tribunal questioned her as to the value of the course to her future, particularly as she had been in Australia for 9 years and changed her career direction. She said the subjects she studied will help in the future, and there are very few restaurants in Nepal which maintain such a high standard of hygiene and she wants to open a restaurant.

15. The Tribunal questioned why she would work in hospital catering and not a restaurant in Australia if her aim was to open a restaurant on return to Nepal. She referred to her work at Hurstville and that she had recently been employed as the cook in the kitchen.

16. She said she will open it in Kathmandu and will cook continental food such as chicken and mushroom soup. She said her brother-in-law will support her and already has 50 Lakhs for it.

17. The Tribunal raised concerns as to her length of time in Australia having been in Australia nearly ten years and studying at a lower level than in Nepal. It raised concern as to the change in career from web design to cookery. It noted she had gone from studying Business in Nepal to web design to cookery/hospitality. It discussed with her why she had changed courses from web design to cookery and that it was the third change in career direction. She again indicated that she wanted to open a restaurant on return. She said she wanted to complete the course and return home.

18. The second name applicant chose not to give evidence.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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 meets cl.500.212.

20. 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.

21. 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.

22. 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.

23. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

24. This is a difficult case to assess. The applicant has been in Australia for nine years, which raises concerns as to whether she is a temporary entrant. She has changed her career direction from studying business in Nepal, to studying web design in Australia, then cookery and hospitality management. She has only successfully completed courses in the vocational level despite achieving a Bachelor level course in Nepal.

25. However, the applicant has successfully completed courses she has been enrolled in since 2013 when her student visa was granted. Since June 2016, prior to her application for a student visa she successfully completed commercial cookery. She is now enrolled in the Diploma of Hospitality Management and achieving course progression. She was able to provide detail at the hearing consistent with independent information from the education provider as to this course. She is attending and achieving course progress and indicates she will complete the course by April 2019. She is therefore over ¾ of the way through the study she indicated she intended to do in her student visa application. She claims she will depart after completion of this course as there is no need to study at the Bachelor level.

26. Her change in career direction from web design to cookery aligns with her part time work with Hurstville Private Hospital as a caterer which she began at the end of 2015. According to the evidence she has since been promoted to cook. She claims that her change in career direction and study area was as a result of her new found passion in this area after her employment in catering in 2015. She claims on return she will open a restaurant in Kathmandu with money provided by her brother-in-law. She was able to give some evidence as to this restaurant.

27. The Tribunal is satisfied that despite her changes in course direction, the applicant is committed to her current study in Australia so she can improve her employment and career opportunities when she returns to Nepal.

28. The Tribunal finds the applicant’s current enrolment and future plans supportive of her claim that she sees Australia as a temporary location in which to study. She provided evidence that she will depart Australia on completion of the Diploma course in April 2019 and that there is no need to study further.

29. The Tribunal accepts that the balance of her family resides in Nepal. While her partner is with her in Australia he is also on a temporary visa.

30. There is no evidence of military service commitments or political and civil unrest in Nepal which would present as a significant incentive for the applicant not to return to her home country.

31. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

32. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

33. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.