Dhawan (Migration)

[2018] AATA 4510

Dhawan (Migration) [2018] AATA 4510 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhdev Raj Dhawan

CASE NUMBER:  1712225

HOME AFFAIRS REFERENCE(S):           BCC2017/1025654

MEMBER:Mark Bishop

DATE:5 October 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 05 October 2018 at 10:45am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – withdrawal from studies – medical condition – movement records – study options in home country – resistance to marriage pressure – subsidy from family – attends temple – adequate income – offer of employment – existing qualifications – lengthy period in Australia – overlap subjects – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
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 30 May 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 15 March 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 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 the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 2 October 2018 to give evidence and present arguments.

5. The applicant provided a copy of the decision record to the Tribunal. The decision record contained an extensive history of the applicant’s immigration visa and academic history in Australia. It outlined that a nomination (business sponsorship visa) was made on 5 December 2016 with the applicant’s name as nominee. The position nominated to be filled by the applicant was a chef. The nominated time for the prospective visa was given as four years. The delegate made a finding the applicant’s intention was to remain in Australia far longer than the potential study period, pursue a different type of visa and at that time already held the requisite qualifications for and have experience in working as a chef.

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.

   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.

    Relevant Criteria

11. 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

12. 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.

13. 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] 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.

14. 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.

15. The applicant provided a GTE statement to the Department (TF: 2). It outlined the following:

    ·    The applicant believes formal schooling is required to be a commercial chef;

    ·    The applicant’s views of the attributes of a successful chef;

    ·    The applicant’s view of the necessity of continuing education to Bachelor level to be a chef;

    ·    The applicant’s views of the merit of two name education providers in Melbourne;

    ·    The applicant’s living arrangements in Australia;

    ·    The value of a proposed degree in gaining skills to assist in future career opportunities

16. The decision record disclosed the following:

    ·The applicant arrived in Australia on 8 July 2013 holding a TU-573 visa to study an Advanced Diploma of Leadership and Management and Bachelor of Business. He completed an ELICOS course, commenced and did not complete Bachelor level study between 3 February 2014 and 27 June 2016. In evidence he advised he completed one semester in this course only. The applicant did not have a statement of attainment or course transcript for this one semester period. The applicant advised he could not provide a letter of deferment for the period of six months;

    In evidence he advised he enrolled in a Bachelor of Business for six months. He then changed his mind. The applicant advised he did not apply for a TU-572 visa. The applicant advised he did not approach the Department at any time to seek advice or seek to change his visa.

    ·Since 2013 the applicant has completed the following courses of study in the following periods of time;

    oELICOS in 2013;

    oCertificate III and IV in Commercial Cookery in 2015/2016;

    oDiploma of Hospitality in August 2016;

    oPeriod 15 August 2016 until 23 March 2017 - no study recorded;

    The applicant advised he had a medical condition, a problem with his feet. The applicant advised he did not have any documentation from a medical practitioner that he was not able to engage in study in this period. The applicant advised he did not have a letter of deferment from his education provider for this period.

    oAdvanced Diploma of Hospitality Management – study commenced;

    ·The applicant advised his intent was to return home and open a restaurant;

    ·In the application before the delegate, the applicant provided nil employment history since leaving high school. Your visa work conditions were VEVO checked by several prospective employers in Australia an indication of employment;

    ·On his application form to Australia the applicant advised he wished to return home  and work for a multinational enterprise in contrast to later stated plans of opening a restaurant;

    ·A nomination (business sponsorship visa) was made with the applicant’s name as nominee on 5 December 2016 in the position of chef. The delegate made a finding the intention of the applicant was to remain in Australia for longer than his original study period. The delegate made a further finding the applicant had been less than candid in his intention and responses to the department. In an email to the Tribunal dated 1 August 2017 (Tf: 8) he advised he received an offer from one of the restaurants he was working, the restaurateur was happy to sponsor him,  he provided all necessary documentation to the restaurateur and he resigned his employment after a dispute.

    In evidence he advised he worked for the business sponsor visa and was offered full time employment by the business sponsor. The business sponsor nominated the applicant with his knowledge.

17. On the day prior to the hearing the applicant provided the following material to the Tribunal:

    ·GTE Statement that outlined the following:

    oHe completed a Diploma of Computer Applications in India;

    oHe came to Australia to study a Bachelor of Business. He visited many restaurants in Melbourne. He was impressed with this industry. He delayed his study in Business;

    oHe decided to study Cookery, Hospitality Management and Leadership and Management as he thought he had identified a niche position to open a restaurant in the border between India and Pakistan;

    oHe identified a gap of around 6 months between finish date of his Diploma of Hospitality (15 August 2016) and start date of his Advanced Diploma of Hospitality (20 March 2017). He provided course transcript that showed he had completed 7 subjects in this Advanced Diploma and received course credit transfer for 26 subjects. He provided a Certificate of Graduation for this course;

    oHe wishes to focus on an Advanced Diploma of Leadership and Management.  It will be a stepping stone to further study. He will be able to lead a business, an organisation or small team. It will give a solid foundation in business disciplines;

    oHe has gained sufficient experience in Australia as a chef;

    oHe outlined simple costings of opening a business restaurant if approximately $16,000;

    oHe outlined reasons for the location =of his proposed restaurant;

    oIndia is a large and growing market and there is increasing demand to eat in restaurants;

    ·Attendance certificate ELICOS course for two months in 2013;

    ·Course transcript and Graduation Certificate III in Commercial Cookery dated 2 December 2015;

    ·Course transcript and Graduation Certificate IV in Commercial Cookery dated 20 April 2016;

    ·Course transcript and Graduation Certificate Diploma of Hospitality dated 19 September 2016;

    ·Course transcript and Graduation Certificate Advanced Diploma of Hospitality Management dated 18 August 2018;

    ·Medical certificate dated 18 October 2016 that advised the applicant has “… medical issue with his feet and is having treatment for this”.

    The Tribunal notes this medical certificate did not state the applicant was incapable of engaging in study or in any way, could not enrol and attend an education provider for any period of time or suffered from any incapacity at all.

18. In response to a request for student visa information under s.359(2) of the Migration Act the applicant advised as follows:

    ·He completed high school in March 2010 in India;

    ·He completed two courses in Computer Operations at Diploma level in 2011 and 2012;

    ·A previous application for a student visa was refused on 15 March 2017;

    ·He did not disclose the previous application as a nominee in a business application visa;

    ·He did not complete his course in a Bachelor of Business and his enrolment in this course was cancelled by the education provider for reason of “student notifies cessation of studies” after five months of enrolment on 27 June 2014.  He advised the gap after this withdrawal from studies was caused by a “medical problem”. He advised he worked as a car wash attendant during this entire period at a salary of approximately $25,000;

    In evidence he advised he worked continuously in Australia from August 2013 until the present time as a car wash attendant, labourer, kitchen hand and chef excluding periods of travel, holiday and in between jobs. This period included periods of non-study.

    ·He provided Graduation Certificates in Commercial  Cookery III and IV and a Diploma of Hospitality for completion of study in the period July 2014 until August 2016;

    ·He advised he had completed an Advanced Diploma of Hospitality in August 2017. He provided a copy of a Certificate of Graduation;

    Prior to the hearing the applicant provided a copy of the course transcript and Graduation Certificate in an Advanced Diploma of Hospitality Management dated 4 August 2017

    ·He advised he was scheduled to complete an Advanced Diploma of Leadership and Management in December 2018 (after change to education provider) having commenced the course in October 2017;

    In evidence he advised this completion date was correct.

    ·He advised he had been almost continuously in Australia since August 2013, initially as a car wash attendant and labourer at a salary of approximately $23,000 to $25,000 and thereafter as a chef in three different companies from July 2015 until the present time at an average annual salary of $24,000;

    ·He is enrolled in a Bachelor of Business scheduled to commence 18 March 2019 and conclude December 2020;

    In evidence he advised it was correct he came to Australia to enrol in a Bachelor level degree as the holder of a TU-573 visa and still had not completed such degree that normally takes 2/3 years;

    ·He has returned home on four occasions since 2013 generally for short periods of time;

    ·He holds a passport from India, arrived in Australia in July 2013 and has not applied for a visa to a country other than Australia;

    ·His annual living expenses are approximately $14,000 giving an annual surplus of income over expenditure of approximately $8,000 to $10,000;

    ·He plans to open a restaurant in India and will require approximately $20,000 inclusive of variable outgoings;

    ·He does not have any military service commitments and is not aware of any political or civil unrest in his home country

19. At the hearing the Tribunal invited the applicant to comment under s.359AA on information contained in PRISMS about his study record in Australia. The Tribunal provided a copy of the PRISMS record to the applicant.

20. The Tribunal invited the applicant to comment on or respond to certain information that the Tribunal considered would, subject to applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained the information was taken from the PRISMS record of the applicant. The Tribunal included particulars of the information, explained its relevance, advised the information would be a reason, or part of a reason for the Member to affirm the decision of the Department in the review case and refuse the application for a visa.

21. It outlined the following:

    1.His enrolment in a Bachelor of Business on 8 July 2013 was cancelled by the education provider on 8 May 2013 for reason of “non-commencement of studies”;

    2.He did not enrol in a Bachelor of Business from 8 July 2013 until 3 January 2014. This enrolment was cancelled by the education provider on 27 June 2014 for reason of “student notifies cessation of studies”;

    3.He enrolled in a Bachelor of Business on four further occasions (November 2016, March 2017, November 2017 and August 2018) and each of these enrolments was cancelled by the education provider almost immediately after enrolment for reason of “change to COE”;

    4.He is currently enrolled in a Bachelor of Business scheduled to commence 18 March 2019.

22. The Tribunal inquired if the applicant required a brief adjournment and the applicant advised he sought an adjournment of five minutes, which was granted.  

    In response to paragraph 21(1) above the applicant advised he had commenced study at Bachelor level for one semester in the period 8 July 2013 until 14 March 2017.

    In response to paragraph 21(2) above the applicant advised it was correct.

    In response to paragraph 21(3) above the applicant advised it was correct.

    In response to paragraph 21(4) above the applicant advised it was correct.

23. At the hearing the Tribunal invited the applicant to comment under s.359AA on information contained in the Movement Record about conditions attached to the issue of a TU-573 visa on 7 June 2013 that expired on 15 March 2017 The Tribunal provided a copy of the applicant’s Movement Record. 

24. The Tribunal invited the applicant to comment on or respond to certain information that the Tribunal considered would, subject to applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained the information was taken from the Movement Record of the applicant. The Tribunal included particulars of the information, explained its relevance, advised the information would be a reason, or part of a reason for the Member to affirm the decision of the Department in the review case and refuse the application for a visa.

    1.The applicant arrived in Australia on 8 July 2013 as the holder of a TU -573 visa scheduled to cease on 15 March 2107.

    2.Conditions 8202 (Continues Studying) and 8516 (Continue to satisfy primary or secondary criterial for the grant of a visa) were attached to the visa.

1. The Tribunal inquired if the applicant required a brief adjournment and the applicant advised he sought an adjournment of five minutes, which was granted.  

   In evidence the applicant agreed his visa contained the conditions attached as outlined above.

2. The Tribunal disclosed to the applicant the existence on the file of a charge sheet and undertaking of bail provided by the Department (Tf: 40). The accompanying email from the department advised the information had been examined against the non-disclosure provisions s375, s375A and s376 of the Act, and a nondisclosure certificate was not attached as the information was known to the applicant.

3. The charge sheet alleged the applicant did on 24 June 2018 without lawful excuse recklessly cause injury to a named person. The person attacked by the applicant was a customer in his taxi. The literal offence was “unlawful assault”. A condition of bail was the applicant not drives any vehicle for employment or provides any paid service as a driver for hire. The applicant advised he was pleading not guilty.

4. In evidence the applicant advised the person who lodged the complaint had been a customer in his taxi. In evidence the applicant advised he only worked 5/10 shifts over a two year period. The Tribunal pays no regard to the detail of the charge sheet and bail undertaking. They are not relevant to GTE considerations.

   Ministerial Direction Number 69

5. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

6. The Tribunal considers cl.9 and 10 of MD69 - the applicant’s circumstances in his home country.

7. The applicant has completed post-secondary education in India in computer applications. He came to Australia study business. He was generally unsuccessful in his early years in Australia.  The Tribunal asked the applicant why he had not pursued study in India or returned home to India to study in aspects of Hospitality Management that might be relevant to his express desire to open and run a restaurant in his home country. In response to questions the applicant advised he was not interested in studying as a cook/chef in his home country. He advised the position of cook/chef in his home country is a position of embarrassment. He advised he did not look at course or institution availability in India. The applicant advised he wished to study in Australia. In paragraphs 15 and 17 above the applicant outlined his reasons for studying in Australia.

8. He advised his parents are alive and are wealthy. They own land and properties and remit his monies and support him financially. He advised he maintains contact by regular visits and communicates with them on a regular basis. He advised he was resisting pressure from his parents to return home. He advised he was resisting marriage pressures from his mother. He advised the Tribunal he was not ready for marriage. He advised he had earned a good salary in recent years. The applicant did not advise of any community links to his home country. He advised circumstances of his family in India were better than most. He does not have any military service commitments and was not aware of any political or civil disturbance in India. He advised he visited many restaurants in Melbourne and was impressed with this industry.

9. The Tribunal has considered the above. The Tribunal can understand why a citizen of a foreign country might come to Australia to study Business and acquire appropriate business related skills that might be of utility in establish an enterprise in due course. The Tribunal can understand that study obligations in a foreign country might present quite significant problems. The applicant did not explain to the Tribunal why a foreign national coming to Australia to study in the HE sector might change his major course of study to a vocation or occupation that the applicant describes as an embarrassment. The Tribunal does not accept that some familiarity with restaurants in Melbourne is sufficient reason not to examine options of study in this field in the home country.

10. The Tribunal is not satisfied the applicant has reasonable reasons for not undertaking the study in his home country.

11. The Tribunal acknowledges the presence of immediate family in India. They are wealthy and provide a significant subsidy on an ongoing basis to the applicant’s lifestyle in Melbourne. He visits his home country and maintains communication links with his family. The applicant’s personal ties to his home country are limited to a family who provides income to him in Australia. He did not provide any evidence or submissions of community links. He described his family circumstances in India as better than most. He advised he did not have any military service commitments and was not aware of any political or civil disturbances in India. The applicant expressed considerable reluctance to return to his home country as he advised he did not wish to marry and was not ready as yet for marriage. He advised the Tribunal he continued to resist pressure from his mother to return to India. The Tribunal has regard to these sentiments.

12. The Tribunal is of the view the extent of the applicant’s personal ties to India are a significant contributory factor in decisions not to return to India. The Tribunal is of the view those circumstances do not serve as a significant incentive to return to his home country.

13. The Tribunal considers cl. 11 of MD69 - the applicant’s potential circumstances in Australia.

14. The applicant advised he was a Hindu and attends temple on a weekly basis. His temple is close to home. He attends temple for prayer, social, work and cultural reasons. He advised he attends temple when he has spare time. He advised the Tribunal that temple was a focal point for his community in Melbourne.

15. He advised he lives in a share house with 5/6 other people. He works night shift as a chef in Fitzroy and earns income that supplements remittances from home. He has been continuously employed in Australia since August 2013 (excluding a brief period in early 2015)

16. The Tribunal is of the view the applicant has established a well-ordered and well-structured life for himself in Australia. That life involves home and accommodation with a small group of people, continuing work that generates an adequate income, remittances from home that assist in his finances and extensive participation in community activities.

17. The Tribunal is of the view the applicant’s ties to Australia are extensive and varied. They have built over time. They extend to work study and community. They give order, structure and purpose to the applicant’s life. The Tribunal is of the view the applicant is using the student visa program to maintain ongoing residence and to circumvent the intent of the migration program.  

18. The Tribunal considers cl. 12 of MD69 - the value of the course to the applicant’s future.

19. The applicant is qualified in computer applications and has nearly completed a range of comprehensive courses in relevant aspects of Hospitality Management. He advised he completed studies at Certificate III and IV level in Commercial Cookery. He advised the Tribunal he has completed Diplomas in Hospitality Management. He advised the Tribunal in writing (Tf: 27) he had completed an Advanced Diploma in Hospitality Management or would complete it on 12 October 2010. He advised the Tribunal he had been employed as a chef from November 2015 until the present time.

20. The delegate made a finding a nomination (business sponsorship visa) was made with the applicant’s name as nominee on 5 December 2016 in the position of chef. In an email to the Tribunal dated 1 August 2017 (Tf: 8) he advised he received an offer from one of the restaurants he was working, the restaurateur was happy to sponsor him,  he provided all necessary documentation to the restaurateur and he resigned his employment after a dispute.

    In evidence he advised he worked for the business sponsor visa and was offered full time employment by the business sponsor. The business sponsor nominated the applicant with his knowledge.

21. The applicant is a well-qualified man. He has formal training and qualifications in Australia that allows him to work in his vocation or occupation as a cook or chef. He has extensive practical experience as a cook/chef working in restaurants in Melbourne over a significant period of time. He has a critical understanding of formal and theoretical management concepts gained through his extensive studies in industry relevant sectoral Diplomas and Advanced Diplomas in Hospitality Management. He seeks now to continue study in an Advanced Diploma of Leadership and Management (and provided relevant academic transcript that shows he has nearly completed this additional Advanced Diploma)when he has already acquired the most senior available VET level qualifications in his chosen industry field of Hospitality Management in which he has repeatedly advised the Tribunal he wishes to work. He then wishes to study a Bachelor degree to commence in March 2019. The applicant wishes to remain as a resident in Australia till approximately 2021 so that he might gain a Bachelor degree which was his original purpose for coming to this country in 2013.   

22. The applicant advised (Tf: 24) it was his desire to open a restaurant in his home country. He advised he had researched it a lot and he planned to open it in a busy street in his home town. He advised preliminary costings were approximately $20,000. In a later statement to the Tribunal (Tf: 71) he advised those costs were around $A16,000. The applicant did not provide a business plan to the Tribunal. He provided only the most rudimentary costings of opening his own restaurant. He did not advise of access to capital to fund such a project. He did not advise of discussions as to legal structures that might be required. He did not advise of discussions with potential suppliers.

23. He outlined reasons for studying further an Advanced Diploma of Leadership and Management (Tf: 71). The applicant told the Tribunal he wants to open his own business and build his own business. That is a worthy ambition. The applicant provided relevant course transcript of subjects studied in his many courses relating to Hospitality Management (Tf: 60, 62,64 and 66) and study in Leadership and Management (Tf: 71). The Tribunal examined this transcript.

24. Without being exhaustive an examination of the transcript provided by the applicant shows he has concluded studies in finance, management of knowledge and information, organisational change, leadership, innovation and continuous improvement, development and implementation of strategic, business and marketing plans, corporate governance, menu development, coordination of cooking operations, management of quality customer service, budget preparation, finance management, staff recruitment, selection induction and monitoring, staff rostering, business relationships, management of diversity finances and operational plans to mention some of the subjects studied in five different Certificates, Diplomas and Advanced Diplomas relating to Hospitality Management and Leadership and Management.  This impressive set of qualifications is in addition to industry training and industry experience as a chef.

25. The Tribunal notes there is a fair degree of repetition and overlap in the subjects outlined above and more generally in the various transcripts provided by the applicant.

26. The Tribunal notes the findings of the delegate as outlined at paragraph five above. The Tribunal is not bound by those findings.

27. The Tribunal notes the applicant had the opportunity to advance his studies in the period 15 August 2016 until 23 March 2017. He did not study in this period. The applicant advised he had a medical condition, a problem with his feet. He provided a copy of a medical certificate dated 18 October 2016 (Tf: 56) that stated the applicant “…has a medical issue with his feet and is having treatment for this.” The applicant advised he did not have any documentation from a medical practitioner that he was not able to engage in study in this period. The applicant advised he did not have a letter of deferment from his education provider for this period.

28. The applicant stressed to the Tribunal it was important he gain a further qualification at Bachelor level. He advised he wants to have a degree. The applicant did not lead any evidence that Bachelor level qualifications from Australia have any particular utility in the restaurant industry in India. The applicant did not provide any statements or provide copies of correspondence that suggests such a qualification is desirable or necessary in any way. The applicant did not provide any material from professional associations, industry groups, chambers of commerce or industry participants that Australian Bachelor qualifications are sought out in any way in India.

29. The Tribunal is unable to determine that the proposed course will assist the applicant to obtain employment or improve his employment prospects in his home country. The Tribunal is unable to conclude completion of a Bachelor level degree will add anything more than marginal value to the most impressive set of qualifications already gained by the applicant. The Tribunal is not aware of any evidence that might suggest a Bachelor level degree is necessary to open a restaurant in India.   

30. The Tribunal considers cl. 13 and 14 of MD69 - the applicant’s immigration history.

31. Clause 13 of MD69 makes it clear an applicant’s immigration history refers both to their visa and travel history. Visa history includes applications for student visas, conditions attached to visas, bridging visas and applications as a nominee in a business sponsorship visa. The Tribunal provided copies of the PRISMS record and Movement record to the applicant and both are discussed above.

32. The Tribunal is aware that a nomination (business sponsorship visa) was made on 5 December 2016 with the applicant’s name as nominee. It outlined that a nomination (business sponsorship visa) was made on 5 December 2016 with the applicant’s name as nominee. The position nominated to be filled by the applicant was a chef. The nominated time for the prospective visa was given as four years.

33. The applicant was the holder of a TU-573 student visa for study in the HE sector with conditions 8202 and 8516 attached in the period 7 June 2013 until 15 March 2017. During this period there were extensive periods of non-enrolment in the HE sector, non-study in the HE sector and enrolment cancellation in the HE sector. The detail is outlined in paragraph 21 above.

34. The applicant advised he was a citizen of India, first arrived in Australia in mid-2013, has been continuously resident in Australia since that time, has returned to India on a number of occasions and has not applied for a visa to a country other than Australia.

35. The Tribunal is of the view the applicant has spent a lengthy period of time in Australia and undertaken a series of short in expensive courses. The Tribunal is of the view the applicant has used the student visa primarily for maintaining ongoing residence.

    Conclusion on cl.500.212

36. 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.

37. 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

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

    Mark Bishop
    Member