Pokharel (Migration) [2018] AATA 4563 (30 August 2018)

Last Updated: 11 December 2018

Pokharel (Migration) [2018] AATA 4563 (30 August 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Jyoti Pokharel

CASE NUMBER: 1709784

HOME AFFAIRS REFERENCE(S): BCC2016/4169515

MEMBER: Mark Bishop

DATE: 30 August 2018

PLACE OF DECISION: Melbourne

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

Statement made on 30 August 2018 at 2:45pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine applicant for entry and stay as a student – maintaining ongoing residency in Australia – dependent visa – relationship breakdown – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.111, 500.211, 500.212, 500.218


CASES
Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; [2000] 168 ALR 407
Minister for Immigration and Border Protection V Angkawijaya [2016] FCAFC 5
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105

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 18 April 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 9 December 2016. 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.500.212of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained an extensive history of the applicant’s immigration and visa history. The decision record contained the applicant’s PRISMS record.
5. The applicant appeared before the Tribunal on 30 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
6. The applicant was assisted in relation to the review by their registered migration agent.
7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

9. 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?

10. 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.
11. 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.

Relevant Criteria

12. It appropriate to observe that compliance with the prescribed criteria turns on the Tribunal’s satisfaction on review as to whether or not the criteria have been met and not on the objective existence of that fact. Minister for Immigration and Border Protection V Angkawijaya [2016] FCAFC 5 at 15
13. In determining whether it is so satisfied, the Tribunal is not required to uncritically accept any or all of the allegations made and it has not done so. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:

A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

14. Similarly, as observed by McHugh J sitting in the High Court’s original jurisdiction as a single judge in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; [2000] 168 ALR 407 at [67]:

If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

15. The Tribunal further observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:

In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

16. The applicant has resided in Australia since 25 November 2008 until the present time as the holder of successive student and bridging visas as outline below:
    • TU-572 student visa from 25 November 2008 until 30 September 2010;
    • TU-573 (dependent applicant) student visa 6 October 2010 until 9 August 2013;
    • TU-570 student visa from 9 August 2013 until 26 July 2014;
    • TU-572 student visa from 3 September 2014 until 14 December 2016;
    • Bridging visa WB-020 from 23 June 2017 until the present time.
17. In a written response to a request for student visa information under s.359(2) of the Migration Act the applicant advised he had departed Australia to visit Nepal on two brief occasions in 2016 and 2017. Otherwise the applicant advised he had not left Australia since his initial arrival in 2008.
18. The applicant provided a statement of purpose to the Department. It outlined the following:
    • He was currently enrolled in a Certificate III Commercial Cooking, Certificate IV Commercial Cooking, Diploma of Hospitality Management and Advanced Diploma of Hospitality Management from 18 April 2016 until 3 August 2018;
    • He arrived in Australia in 2009 to support his ex-wife but relationship broke down so he changed his career goals;

The Tribunal inquired when the applicant separated from his wife. In evidence, the applicant advised he separated from his wife in January 2012, lived separately from her from that time and gained formal divorce in June/July2013.

• He stated studying in Australia would strengthen his career prospects in Nepal. His English has improved and he has gained a lot of knowledge in management and business administration fields. Feels he still lacks core hospitality skills;
• Hospitality courses will help him set up and run a successful hospitality based business. He always wanted to pursue a career is hospitality;
• Hospitality and tourism are the fastest growing areas of employment in the world;
• Victorian Institute for Culinary Arts and Technology (VICAT) programs has worldwide recognition. The fees are reasonable; courses have a good reputation as they provide internship programs and career development activities. The college provides a theoretical and practical program.
• He chose to study in Australia based on its diverse and modern environment, no political instability or conflicts and stable education system. Australian degrees are recognized all over the world and can get many jobs compared to a national degree.
• Students cannot make their career bright in Nepal because of the political instability and lack of proper education.
• He has no intention to stay further in Australia after finishing his studies. He will return home and can easily get employment in tourism and hospitality sectors in an Event Manager/Tour Operator or Catering Manager role. His ultimate goal is to open his own business in Nepal.

19. The applicant provided evidence of completion or graduation of the following courses in Australia since January 2014;
    • Certificate III in ESL (Access), 4 January 2014;
    • Certificate IV in Small Business Management;14 September 2014;
    • Diploma of Management, 16 October 2015;
    • Certificate III in Commercial Cookery, 11 December 2017;
    • Certificate IV in Commercial Cookery 11 December 2017;
    • Diploma of Hospitality Management, 2 March 2018.
20. The Tribunal was enrolled on a further nine occasions in a range of courses (Certificate IV in ESL, Certificate IV in Small Business, Diploma of Business, Advanced Diploma of Management, Diploma of Hospitality, Advanced Diploma of Hospitality, Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and an Advanced Diploma of Hospitality Management. Many of the enrolments in these courses were cancelled by the education provider generally for reason of “non-commencement of studies”, “student notifies cessation of studies”, “student left provider” or “change to student enrolment”.
21. The Tribunal notes that the dates set out in paragraph 19 above are derived from the Graduation Certificates provided by the applicant. Generally completion of the above courses occurred after multiple enrolments in the same course and significant credit transfer of subjects previously completed.
22. The applicant finished a Diploma of Hospitality Management on 2 March 2018. He enrolled in an Advanced Diploma of Hospitality to commence on 19 March 2018. This enrolment was cancelled for reason of “non-commencement of studies”.
23. The applicant enrolled in an Advanced Diploma of Hospitality Management that was scheduled to commence on 3 August 2018. This enrolment was cancelled on 3 July 2018 for reason of education provider “default/cancellation”.
24. The applicant enrolled in an Advanced Diploma of Hospitality Management scheduled to commence on 27 August 2018 and conclude on 9 December 2018.
25. The applicant provided a written response to a request for information under s.359(2) of the Migration Act. It outlined the following:
    • The applicant completed a three year course in Commerce at the Nepal Commerce Campus, Kathmandu in 2001;
    • He worked as an agency sales reporter for two years in 2001/2002;
    • He completed courses as outlined in paragraph 19 above;
    • He has worked at Grand Foods in packaging food from 2012 until the present time at an annual salary of $20,800;
    • He has not applied for a visa to a country other than Australia. He has not visited any countries apart from Australia and Nepal in the last ten years;
    • His annual living expenses are $8.520;
    • He last saw his wife, brother and mother in Nepal in July 2017.
26. In evidence the applicant advised he continued to study from March 2018 until the present time. His school cancelled his course and he gained some credits for work already completed. The applicant undertook to provide relevant supporting documentation by 2pm on the day of the hearing. The applicant did not provide the evidence. There is no evidence before the Tribunal the applicant was engaged in any study in the period from March 2018 until the present time.
27. On the day of the hearing the applicant provided a further statement to the Tribunal. It outlined the following:
    • He arrived in Australia on a student dependent visa in January 2009 to support his ex-wife. Things did not work out between them after a few years;
    • He separated from his ex-wife and then applied for his own student visa to study English in 2013. He studied a Certificate IV in Small Business Management and Diploma of Management;
    • His new wife does not have major commitments in Nepal. It is not possible for him to visit her frequently. He is sad she is not with him in Australia;

In evidence, the applicant advised he had seen his wife for one month since their marriage in 2016.

• He has a strong interest in hospitality field. He completed Certificate III, IV in Commercial Cookery and Diploma of Hospitality at VICAT;
• VICAT closed down so he had to change education provider so hoping to complete course by 09/12/2018;
• The tourism and hospitality industry is a large industry in Nepal;
• His enrolled courses will develop his skills to become a qualified chef/cook, manager or entrepreneur;
• Australian qualifications are renowned worldwide. They will open many doors of opportunity in Nepal;
• He chose to study at ACOT because it is a reputable training provider;
• He travelled to Nepal in 2016 to visit his sick father;
• He only has 4 months left of study. Upon completion of the study, he will return home and try to look for employment at a Hotel or Resort in middle management roles. He also plans to open a resort style park offering excellent national and international cuisines;
• His brother in Nepal is a high-level employee of the Ministry of Nepal government and as an investor supports his decision;
• He has always completed past course successfully.

28. The Tribunal finds the applicant has been continuously resident in Australia since his initial arrival in January 2009, that he has rarely left Australia, that he has been continuously employed in Australia since at least 2012, that his study has been confined to the VET sector, that there has been limited progress over an almost ten year period (noting the applicant was lawfully resident in Australia as a dependent for three years as outlined in paragraph 16 above), that there has been a degree of repetition in studies pursued by the applicant (Commerce in Nepal, Small Business Management in Australia, Hospitality Management in Australia), that he has now acquired trade level qualifications as a cook/chef, vocational level qualifications in management and sector specific management qualifications in hospitality management.

Ministerial Direction Number 69

29. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).
30. The Tribunal considers cl.9 and 10 of MD69 the applicant’s circumstances in his home country.
31. The applicant married his first wife in Nepal in July 2008. She was of a different caste to him. This inter-caste marriage became a source of significant family disharmony and resulted in the applicant becoming estranged from his family in Nepal. His wife wanted to study so the applicant accompanied his wife to Australia. Whilst in Australia as the holder of a dependant student visa he did not give any consideration to studying. He worked part time for a number of years.
32. His family still lives in Nepal. The applicant has reconciled with his family. His family owns significant agricultural interests in Nepal that provide rents and income. He does not receive regular remittances from Nepal. When he needs money in Australia his brother make it available to him by way of a friend in Mildura. His elder brother in Nepal provides finance plus the applicant earns approximately $400 per week in Australia.
33. The applicant advised the Tribunal he communicates with his family in Nepal on a regular basis using the tools of social media. He advised he speaks daily to his wife. He advised he has seen his wife for one month since their marriage in August 2016. On this occasion he returned to Nepal because his father was ill.
34. The applicant advised he did not have any military service commitments and was not aware of any civil or political unrest in Nepal. He advised his family in Nepal were wealthy and better off than most people.
35. The Tribunal is inclined to the view the applicant has ties to Nepal. Those ties are of his wife, his family and property. The applicant has been resident in Australia for almost a decade. In that decade he has returned home for two brief occasions. The applicant’s priorities have not been of family. He has chosen to live separate from them. The applicant outlined his family property interests in Nepal. He did not express any concerns as to their current administration or management. Ties of his own family, his extended family, family agricultural interests have not been sufficient for the applicant to return home. Instead he has enrolled in a series of VET courses that to a significant degree involve study in the same field. Even now the applicant wishes to extend his time in Australia by engaging in study in an Advanced Diploma. At the completion of that Advanced Diploma the applicant advised the Tribunal he wished to remain for a further significant period in Australia and perhaps his wife might join him.
36. The Tribunal does not deny the existence of ties to Nepal. The Tribunal is of the view those ties do not serve as a significant incentive to return to his home country.
37. The Tribunal considers cl. 11 of MD69 the applicant’s potential circumstances in Australia.
38. The applicant advised he lived in a share house with a number of other men. He works part time and studies. He meets with friends in Melbourne. On occasion he goes to temple. He advised he spent a lot of time talking to his wife in Nepal. The Tribunal expressed the view he might be lonely living a life only of work and study in a foreign county. The applicant responded by saying he was sad. The Tribunal does not view the applicant’s tie with Australia as extensive. The ties are limited. They are limited by design. On a number of occasions the Tribunal pressed the applicant to outline his activities outside work and study. The applicant declined to respond and advised he spoke a lot to his wife on the phone.
39. Ordinarily the Tribunal would be of the view the applicant’s ties to Australia are minimal. The Tribunal cannot reach that conclusion in this review. To a disinterested observer the applicant’s life in Australia appears to be devoid of personal relationships, comfort and family. The applicant repeatedly said he had reconciled with his family in Nepal, he clearly had high personal regard for his older brother and he spoke of missing his wife. Yet the applicant wants to continue studying in Australia in a field in which he has already completed significant studies.
40. The Tribunal concludes the applicant’s ties with Australia, however limited, by circumstance of work and study present as a strong incentive to remain in Australia. The Tribunal is of the view the applicant is using the student visa program to circumvent the intentions of the migration program
41. The Tribunal considers cl. 12 of MD69 the value of the course to the applicant’s future.
42. The applicant has successfully completed studies in small business management, management and hospitality management. He has been exposed by way of formal instruction to all of the critical elements involved in the management of an enterprise. He has been exposed to all of the critical elements involved in the managed of the type of enterprise he wishes to eventually own and run. He is qualified at trade level to be a cook/chef. He has both general management expertise and sector specific training in hospitality. The applicant provided transcript of his past studies and relevant graduation certificates. A perusal of that documentation shows that nearly all of the units to be studies at Advanced Diploma level have been the subject of instruction in previous completed enrolments. The applicant agreed with a suggestion from the Tribunal that he currently possessed a set of qualifications that would enable him to gain employment in Nepal.
43. The Tribunal has doubts that the acquisition of a further qualification will assist in more than the most marginal way to obtain employment or improve his employment prospects in his home country. The applicant has sufficient qualification to obtain employment in either Australia or Nepal.
44. The Tribunal considers cl. 13 and 14 of MD69 the applicant’s immigration history.
45. The applicant advised the Tribunal he arrived in Australia in January 2009, he held a passport from Nepal, he had returned home on two brief occasions since 2009 and that he had not applied for a visa to any other country except Australia. He has been resident in Australia for almost a decade. His studies have not progressed beyond the VET sector. His courses have been short and inexpensive. He has been employed continuously since 2012
46. The Tribunal is inclined to the view the applicant is using the student visa program primarily for maintaining ongoing residence.

Conclusion on cl.500.212

47. 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.
48. 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

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

Mark Bishop
Member