DRAVID (Migration)

DRAVID (Migration) [2018] AATA 5707 (24 October 2018)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Babitagauri Natrajan DRAVID
CASE NUMBER:  1713758
HOME AFFAIRS REFERENCE(S):           BCC2017/835150
MEMBER:Mark Bishop
DATE:24 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 24 October 2018 at 4:41pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine applicant for entry – using the student via programme primarily for maintaining ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359AA, 359(2), 499
Migration Regulations 1994, Schedule 2, cl 500.212
Ministerial Direction Number 69 (MD69), cls 9 & 10
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 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.
The delegate in this case refused to grant the visa 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.
The applicant appeared before the Tribunal on 11 and 18 October 2018 to give evidence and present arguments. This was a particularly difficult case to hear and resolve. The applicant repeatedly gave conflicting evidence. She repeatedly made material assertions and when requested to evidence to support the evidence variously advised the Tribunal she no longer had the evidence, provided material that did not support her assertions or at strategic times in hearings provided additional material deliberately withheld from the Tribunal or requested at an earlier stage of the hearing.
The applicant provided a copy of the decision record to the Tribunal. The decision record contained an extensive discussion of the applicant’s immigration, visa and study history.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)
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?
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.
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.
The applicant arrived in Australia in November 2008.
The applicant provided a Genuine Temporary Entrant (GTE) Statement to the Department that outlined the following in 17 dot pointed paragraphs (with the addition of Tribunal commentary as relevant):
·She finished her secondary education in India in 1999;
·She gained a Bachelor of Commerce (with optional subject Advanced Accounting and Auditing) from Sardar Patel University in December 2002;
·Following graduation from university she gained employment as a customer service representative from August 2002 until November 2004;
·She enrolled in and substantially completed a Bachelor of Law (she missed one subject only and provided proof of passing of all other required subjects) in the period June 2005 until April 2007;
·She worked as the Operations Manager in a gym from January 2006 until August 2008;
·She enrolled and completed various English language courses in Australia in the period November 2008 until February 2009;
·She enrolled in and completed various courses in the VET sector in Australia from February 2009 until 2013 as follows;
o Certificate III in Commercial Cookery and Diploma of Hospitality, conferred 5 September 2010
o Certificate IV in Frontline Management and Diploma of Management both conferred 1 November 2011 after period of study 1 November 2010 until 30 October 2011
o Certificate IV in Commercial Cookery, conferred December 2012
o She enrolled in a Bachelor of Accounting that commenced 25 February 2013 and concluded 20 February 2015, and conferred February 2015
The Tribunal inquired why the applicant enrolled in courses in the VET sector and not the Higher Education (HE) sector in the period 2009 until 2013 when her visa required her to enrol only in courses in the HE sector. The applicant advised she could not study in the Higher Education sector because of the death of her parents and break-up of her marriage. The applicant advised she enrolled in cooking and other hospitality management courses, paid her fees, attended courses and passed all her subjects in this four year period. The applicant advised she received psychiatric counselling in this period. The Tribunal gave the applicant an opportunity to provide proof of psychiatric counselling during this period. The applicant failed to provide any evidence of psychiatric counselling in this period. The applicant provided proof of attendance at counselling conducted by the Melbourne Polytechnic Counselling Service on two occasions in February 2014 and one occasion in October 2014. The document provided to the Tribunal did not outline the reasons for the applicant seeking counselling except in the most general descriptive terms relating to “personal/mental health issues”. The document was signed by a student counsellor. The applicant did not give any consideration to returning home to seek comfort and solace in this period. The Tribunal accepts the applicant received counselling on two occasions in 2014. However this was not the relevant period of concern. That period was 2009 until 2013.
The applicant advised she had not sought to obtain a TU-572 visa that permits study in the VET sector. The applicant advised she had not sought advice from the Department as to obtaining a TU-572 visa
·In March 2015, after completion of her Bachelor of Accounting the applicant enrolled in a professional level course at CPA Australia. In evidence the applicant advised she did not complete any units in this course. The applicant advised she did not make any progress in this professional course.
·The Tribunal provided a copy of the applicant’s PRISMS record as outlined below at paragraph 18. The applicant enrolled in a Certificate IV in Business and Diploma of Business from 21 March 2015 until 5 June 2015. Her enrolment in both courses was cancelled on 5 June 2015. In evidence the applicant advised she did not complete either course. The applicant withdrew from both courses after one month of enrolment.
The Tribunal inquired what the applicant had done in the period 5 June 2015 until 1 September 2015. The applicant advised she worked as an intern from 30 March 2015 until end of May 2015 and that this period of internship was unpaid.
·The applicant resided in Australia from 2 September 2015 until 2 March 2017 as the holder of a VC-485 visa. The applicant did not study in this period.
·As outlined in paragraph 16 to 18 below and confirmed in evidence the applicant enrolled in a Master of Professional and Practicing Accounting on six occasions from 24 January 2017 with a course conclusion date of 15 December 2019.
As outlined below in evidence the applicant advised it was the same course and a COE was cancelled because of late payment of a tuition fees. The Tribunal accepts this advice.
The Tribunal inquired what the applicant had done in the period 2 September 2015 until 2 March 2017 whilst she was the holder of a temporary graduate VC-485 visa. The Tribunal distinguished between professional work associated with her studies and general paid employment as a food and beverage attendant. The applicant advised she did not work in this period October 2015 until March 2017 (except as a food and beverage attendant). The Tribunal inquired why the applicant did not work in this period. The applicant advised she applied for work. She was unsuccessful in gaining employment. The applicant advised the Tribunal she did not have any evidence of seeking employment in this period (excluding a one line email from Melbourne Polytechnic advising of receipt of an expression of interest in a career development workshop). The applicant advised that in the 18 month period she was the holder of a 485 temporary work visa, neither working nor studying, she decided not to pursue further study in accounting at Master level.
The Tribunal inquired what the applicant had done in the period 2 March 2017 until 14 December 2017. The applicant advised she had been enrolled in a Master of Professional Accounting and Practicing. In semester 1 the applicant enrolled in four subjects and passed none. In semester 2 the applicant enrolled in two subjects and passed one subject.
The Tribunal inquired what the applicant had done in the period 15 December 2017 until 10 October 2018. The applicant advised she had been enrolled in a Master of Professional Accounting and Practicing and that she had passed two units over a four semester period in 2017 and 2018. This was the same course the applicant enrolled in in the period March 2017 until December 2017. In semester 1 the applicant enrolled in four subjects and passed none. In semester 2 the applicant enrolled in two subjects and passed one subject.
The applicant provided a letter from Melbourne Polytechnic that advised she passed two of seven subjects in the four semester period of 2017 and 2018.
The Tribunal inquired if the applicant had completed or graduated from any approved courses in Australia in the period February 2015 until October 2018 (whilst the applicant resided in Australia in pursuant to VC-485 visa with right of work and study and a Bridging visa with right of work and study). The applicant advised she commenced a three month consultancy job at Weybridge Consulting in late June 2015.
As outlined at paragraph 22 below the applicant advised the Tribunal she had a significant short time medical procedure on 26 November 2017.
The applicant provided a letter from Access Health and Community signed by a psychologist advising it was recommended she undertake a reduced study load for semester 2, 2018.
As outlined in paragraph 20 hereunder the Tribunal requested the applicant provide any information (including medical opinions, medical advice, medical receipts relating to payment of treatment or relevant transcripts from education providers) relating to periods of stress or depression.
Excluding the letter from Access Health and Community summarises immediately above the applicant did not provide such information.
The Tribunal notes the applicant’s poor study outcome during 2017 and 2018 is constant. In two semesters she enrolled in 4 units and in two semesters she enrolled in two units and passed two units over a two year period. Poor study outcomes pre-dated the medical procedure in late November 2017. Poor study outcomes post-dated the medical procedure in 2018. The applicant failed to provide any medical advice, opinion or note that drew a correlation or connection between the medical procedure and poor study outcomes.
The Tribunal has not ignored the note from Access Health and Community dated 27 July 2018. It does not advise of the detail of the “psychological concerns”. It does not relate “psychological concerns” to past study performance in any way. It does not offer a diagnosis of the “psychological concerns”. It does not offer a prognosis of the “psychological concerns”. In short the applicant has not satisfied the Tribunal her poor study outcomes during 2017 and 2018 were significantly related to stress or depression arising out of her medical procedure.
·Her reasons for seeking enrolment in a Master of Professional Accounting were to gain theoretical knowledge, practical skills and learn to solve business and accounting problems;
·She was confident of finding secure full time employment in an accounting related field leading to higher level positions in finance;
·Her reasons for choosing Melbourne Polytechnic;
·Her reasons for choosing Australia;
·Family circumstances of living with her sister in Melbourne;
·She owns the family home in India as her siblings are all married and live elsewhere.
The applicant provided a GTE Statement to the Tribunal that outlined the following in 12 dot pointed paragraphs (with the addition of Tribunal commentary as relevant):
·She is an Indian national and wishes to study a Master of Professional Accounting at Melbourne Polytechnic scheduled to conclude June 2019;
·Her work and study history in India from 1999 until late 2008 and academic progress in Australia from late 2008 until the present time as outlined in paragraph 12 above;
·Her work history as a food and beverage attendant from November 2009 until June 2010 and her continuous employment history with the Spotless Group from July 2010 until the present time as a food and beverage attendant;
·The breakup of her marriage in early 2009;
·The death of her mother in March 2010;
·The death of her father in October 2012;
·She gained a short term contract at Weybridge Consulting that ended in October 2015;
The Tribunal inquired what the applicant had done from November 2015 until March 2017 whilst she resided in Australia as the holder of a VC-485 temporary work visa. The applicant advised she did not engage in any employment and did not have work in her professional field in this period. The applicant advised she did not receive any wages, salary or consultancy fees for employment associated with her professional studies attached to her temporary work visa in this period. The applicant advised she continued her work as a food and beverage attendant in this period and received the normal salary for this work.
·She did not study in the period July 2015 until the present time. In the first hearing she said she suffered from psychological trauma and underwent psychological counselling due to the failure of a relationship. In her written statement to the Tribunal she advised she attached relevant proof. The Tribunal examined the statement and attachments. The alleged proof was not attached to the statement. In evidence during the first hearing she advised she was unable to provide any proof of trauma or counselling from July 2015 until May 2018. In evidence in the first hearing the applicant advised she received some counselling after January 2018 but was unable to provide any evidence of attendance or medical reports relating to this treatment during the first hearing.
·Her future plans as to employment;
·He parents have left her the family home in India;
·She lives in a share house with four other persons. Her sister has lived in Australia since 2016 and sees her only occasionally.
·She has extended family in India.
In evidence the applicant advised she commenced study in her Master of Professional Accounting in and will conclude her study in late 2019. The applicant provided a copy of a letter from Melbourne Polytechnic that advised she was scheduled to complete her Master degree in semester 2 2019.
The information provided by the applicant to a request for student visa information under s.359(2) of the Migration Act dated 14 August 2018 was confirmed by the applicant at the hearings.
The applicant provided a letter from Melbourne Polytechnic dated 16 October 2018 as follows:
oThe applicant was currently enrolled in a Master of Professional and Practicing Accounting. She commenced the program on 22 February 2017 and is scheduled to complete her degree in Semester 2 of 2019;
oThe applicant has completed 63% of her course in the Master of Professional and Practicing Accounting. The course comprises 16 subjects and she was given eight credits for prior studies. She passed Two of the Seven subjects she has attempted since enrolling in the degree;
oThe applicant is currently enrolled in the subject MPA804 – Accounting Theory
The Tribunal notes the applicant holds a Bachelor degree in Accounting from a University in Australia (and has provided full transcripts of subjects studied in and across the Accountancy field), a first degree from Sardar Patel University in India with an optional subject of Advanced Accounting and Auditing is a member of CPA in Australia and has completed all units except one in a law degree The Tribunal is inclined to the view the applicant has a full understanding of Accounting Theory gained from study and work over many years.
The Tribunal provided a copy of the applicant’s PRISMS and ICSE record. At the hearing the Tribunal invited the applicant to comment under s.359AA on information contained in PRISMS and ICSE about her study history in Australia.
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 and ICSE 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.

The particulars of the information provided to the applicant at the hearing was as follows:
1.The applicant was enrolled in multiple courses in the VET sector in the period February 2009 until February 2013;
In evidence the applicant advised it was correct.
2.The applicant enrolled in a Bachelor of Hospitality Management in 2009 and this enrolment was cancelled by the education provider on 4 September 2009 for reason of “student notifies cessation of studies”;
In evidence the applicant advised it was correct.
3.The applicant did not enrol in any other course in the HE sector in the period February 2009 until February 2013;
In evidence the applicant advised it was correct.
4.The applicant enrolled on multiple occasions in a Master of Professional Accounting in the period January 2017 until September 2018;
The applicant advised it was the same course and a COE was cancelled because of late payment of course fee. The applicant advised she had been studying since January 2017. The Tribunal accepts this advice.
5.Subject to paragraph 17(4) above the applicant did not enrol and did not study in any approved course in the period February 2015 until the present time;
The applicant advised she completed a Certificate IV in Business in September 2015. Otherwise in evidence the applicant advised it was correct.
6.The applicant arrived in Australia in November 2008 pursuant to a TU-573 visa granted 27 October 2008 and valid until 15 March 2013. This visa required the applicant to enrol in and continue studying approved courses in the HE sector. Conditions 8202 and 8516 were attached to this visa.
In evidence the applicant advised it was correct.
7.The applicant applied for and was granted a temporary work VC-485 visa in the period September 2015 until March 2017.
In evidence the applicant advised it was correct. The Tribunal notes a 485 visa is granted to allow students to live, work and study in Australia, and for them to find work experience in their area of study. It is not mandatory that a student work when they hold the 485 visa, work in their field of study, or even study. As outlined in paragraph 14 above the applicant advised she did not work in this period.
The Tribunal inquired if the applicant required a brief adjournment and the applicant advised she sought an adjournment of five minutes, which was granted. After the adjournment the Tribunal questioned the applicant and she responded as outlined in paragraph 18 above.
During the hearing of 11 October the applicant repeatedly advised the Tribunal she could not provide relevant documentary material to support an assertion of stress, depression, being unwell, regular study at her chosen education provider, enrolment or non-enrolment at an education provider, payment of fees at an education provider or study and progress in a chosen course. The applicant was unable to provide any information (including medical notes, medical opinions, medical advice, medical receipts relating to payment of treatment or relevant transcripts from education providers) relating to periods of stress or depression. The applicant advised she had the relevant information and would provide it to the Tribunal if she had the opportunity.
At the conclusion of the review hearing on 11 October the Tribunal invited the applicant to provide the material outlined immediately above by close of business Tuesday 16 October 2018. The applicant advised the Tribunal she would provide the relevant material.
At 3.48pm on 16 October 2018 and during the hearing on 18 October 2018 the applicant provided the following material to the Tribunal as summarised in 8 dot pointed paragraphs (with the addition of Tribunal commentary as relevant):
·Copy of letter dated 16 October 2018 from Melbourne Polytechnic advising as follows:
oThe applicant was currently enrolled in a Master of Professional and Practicing Accounting. She commenced the program on 22 February 2017 and is scheduled to complete her degree in Semester 2 of 2019;
oThe applicant has completed 63% of her course in the Master of Professional and Practicing Accounting. The course comprises 16 subjects and she was given eight credits for prior studies. She passed Two of the Seven subjects she has attempted since enrolling in the degree;
oThe applicant is currently enrolled in the subject MPA804 – Accounting Theory
The Tribunal notes the applicant holds a Bachelor degree in Accounting from a University in Australia (and has provided full transcripts of subjects studied in and across the Accountancy field), a first degree from Sardar Patel University in India with an optional subject of Advanced Accounting and Auditing, is a member of CPA in Australia and has completed all units except one in a law degree. The applicant advised the Tribunal Sardar Patel University in India was a highly regarded and reputable university. It had a significant overseas student cohort. It was a university that educated the children of the elite in India. The applicant advised the Tribunal it was an Indian equivalent of Harvard or Yale.
·Copy of student payment schedule showing the following:
o   tuition fees pre-paid of $4,100 semester 1 2017, $4,100;
o   tuition fees paid of $4,100 semester 1 2017;
o   tuition fees paid of $2,050 semester 2 2017;
o   tuition fees paid of $2,050 semester 2 2017;
o   tuition fees paid of $800 semester 1 2018;
o   tuition fees paid of $1,250 semester 1 2018;
o   tuition fees paid of $2,050 semester 2 2018.
·Receipts from CPA Australia as follows:
opayment of membership assessment fee 22 July 2015 of $160;
opayment of CPA Program Ethics and Governance non-member fee 2015 semester 2 of $1,090;
opayment of associate membership fee half year 1 July to 31 December 2015 of $155
opayment of associate membership renewal 1 January to 31 December 2016 of $320;
opayment of associate membership renewal 1 January to 31 December 2018 of $325.
·Results statement for applicant for subject Ethics and Governance semester 2 2015 issued by CPA showing fail grade;
·Statement from Melbourne Polytechnic advising the applicant accessed the Melbourne Polytechnic short term Counselling Service relating to personal/mental health issues that impacted on her well-being and ability to study effectively on the following three occasions:
o25 February 2014;
o27 February 2014;
o16 October 2014.
·Receipts from Judith Street Clinic for consulting psychological consultancy service as outlined below. The Tribunal notes the description of the first five visits as outlined immediately below was “Consult Psychological Consultancy Service” and the description of the last four visits was “Professional attendance for the purpose of providing focussed psychological strategies services for an assessed mental disorder by a psychologist registered with Medicare Australia Payment as meeting the credentialing requirements for provision of this service”:
oPayment of $190 for visit 2 January 2018;
oPayment of $110 for visit of 9 January 2018;
oPayment of $150 for visit of 16 January 2018;
oPayment of $150 for visit of 23 January 2018;
oPayment of $150 for visit of 30 January 2018;
oPayment of $170 for visit of 7 February 2018;
oPayment of $99.75 for visit of 21 February 2018;
oPayment of $134.80 for visit on 7 March 2018;
oPayment of $134.80 for visit on 21 March 2018;
·Receipts for payment to Access HC Richmond as outlined below for “Professional attendance for the purpose of providing focussed psychological strategies services for an assessed mental disorder by a psychologist registered with Medicare Australia Payment as meeting the credentialing requirements for provision of this service”:
oPayment of eight receipts for visits in the period 6 April 2018 till 5 September 2018
·Letter from a psychologist at Access Health and Community dated 27 July 2018 advising the applicant had been receiving treatment for psychological concerns since January 2018 and recommending she undertake a reduced study load for semester 2, 2018
The Tribunal asked the applicant to explain the purpose of the visits during calendar year 2018. The applicant received psychological counselling during calendar year 2018 until September 2018. The purpose of the counselling was for issues arising out of a medical procedure the applicant underwent on 26 November 2017. In response to an invitation from the Tribunal the applicant requested the Tribunal not to discuss the detail of the medical procedure. The Tribunal agreed to this request. The applicant declined to provide further detail. The applicant did not provide a medical report or opinion relating to these “psychological concerns”.
The Tribunal finds as follows; the applicant is a graduate in commerce from a prestigious university in India; she almost completed a law degree (missed one subject only) in India; she worked at mid-management level in industry in India for a number of years prior to coming to Australia; she came to Australia to pursue study in the HE sector in November 2008 as the holder of a TU-573 visa granted 27 October 2008 that ceased on 15 March 2013; conditions 8202 (Continues Studying) and 8516 (Maintain Eligibility) were attached to this visa; she enrolled in courses in the VET sector from 9 February 2009 until 4 February 2013; an enrolment in a Bachelor of Hospitality Management in the HE sector was cancelled on 4 September 2009 for reason of “student notifies cessation of studies”; she did not enrol in any further courses in the HE sector until 4 February 2013; she was in breach of condition 8516 attached to her TU-573 visa in the period 4 September 2009 until 4 February 2013; she completed a set of courses in the Hospitality Management industry and wider Management industry in the period 2009 until 2013; in this period of ongoing study in the VET sector the applicant went through the break-up of her marriage and suffered the loss of her parents; she failed to provide proof of any form of counselling in this period 2009 until 2013; she was granted a second TU-573 visa with for the period 18 April 2013 until 26 August 2015; she enrolled in and completed a Bachelor of Accounting in the period February 2013 until February 2015; she sought and received student counselling advice on two occasions in February 2014 and one occasion in October 2014; she applied for and was granted a VC-485 temporary work visa in the period 2 September 2015 until 2 March 2017; she did not engage in professional work associated with her studies in this period of eighteen months and had an unpaid short term consultancy engagement of a limited duration only; she applied for a student visa which is subject to this review and was granted a Bridging visa from 2 March 2017 until the present time with full rights of study and work; she enrolled on multiple occasions in a Master of Professional Accounting from January 2017 until the present time; she paid tuition fees for semesters 1 and 2 in 2017 and 2018; she passed two out of seven subjects in the period January 2017 until present; she continued to work as a food and beverage attendant from 2010 until the present time; she was continuously engaged in ongoing employment with the same firm from 2010 until present earning a salary of approximately $550 to $600 per week plus occupational superannuation; she did not advise of inability to work at any period from 2010 until the present due to issues relating to stress; she received psychological support during the period 2 January 2018 until 5 September 2018 January 2018.
Ministerial Direction Number 69
The Tribunal turns to consider Ministerial Direction Number 69 (MD69).
The Tribunal considers cl.9 and 10 of MD69 - the applicant’s circumstances in her home country.
Accounting courses at undergraduate and postgraduate level are offered by numerous education providers in both India and Australia. The applicant was a student at an elite university in India for approximately six years and graduated in commerce and missed achieving a law degree by one unit. The applicant advised she did not examine the possibility of studying at home prior to coming to Australia. She did not apply to any universities in India. She did not look at studying any courses in India whether Hospitality Management or Accounting. She did not look on the internet concerning course offerings by educational institutions in India. She did not approach any companies in India for advice or any chamber of commerce for advice.
She advised she had spoken to a cousin and listened to his advice.
The applicant had spent many years in a prestigious university in India and thereafter held responsible paid positions. The Tribunal is of the view the applicant would have been aware or she could have researched whether such courses were available in India or elsewhere in the world. The applicant provided a written GTE Statement to the Department that she came to Australia to study cooking, acquire skills from scratch, work her way to the top so she could open a successful food business at home. The applicant applied for and was granted a TU-573 visa to study in the Higher Education (HE) sector. The Tribunal is of the view the applicant has not established reasonable reasons for not undertaking relevant study in her home country.
She advised her parents were deceased. She advised a sister lives in Sydney with her partner and another sister lives in India. She advised she possessed multiple assets in India (land, apartments, agricultural property and large fixed term deposits) that provided multiple income streams to her in Australia. Those income streams amount to approximately $20,000 per annum. She advised she was generally satisfied with the management of her assets in India. She advised her sister had this responsibility and from time to time she had sisterly disagreement about the urgency of responses to attend to management matters associated with her assets. The applicant rarely sees the sister that lives in India. In the last five years she has seen her sister on two occasions only. Finance for travel is not a problem as the applicant described her income in Australia as large, partly comprising income streams from India derived from a large number of assets owned by the applicant. In the last four years the applicant has had the opportunity to visit family in India as for significant periods of time she was the holder of a 485 visa or bridging visa that did not mandate either study or work. The applicant exercised that option in November 2017.
The Tribunal is of the view the applicant’s personal ties to her home country are minimal. Her parents are deceased. She did not advise of any family pressure to return home. She did not advise of any real dissatisfaction with the management of her large asset base.
The Tribunal is of the view the applicant’s personal ties to India are minimal and do not serve as a significant incentive to return to her home country.
The applicant enjoys a large income in Australia from her paid work and her assets in India. She receives large remittances from India from assets she owns. She works in Australia for approximately 20 hours per week as a continuing casual worker, works a lot at weekend when penalty rates are paid, earns approximately $27,000 to $30,000 per annum and has minimal outgoings of approximately $15,000 per annum. She lives with four other persons in a share house at Kingsbury.
The Tribunal is of the view the economic circumstances of the applicant in Australia present as a significant incentive not to return to her home country.
The applicant advised she did not have any military service commitments and was not aware of any political or civil unrest in India. The applicant advised her financial and economic circumstances in India were and would continue to be better than most.
The Tribunal considers cl. 11 of MD69 - the applicant’s potential circumstances in Australia.
The applicant advised of family, community, work and study ties to Australia. She has a sister who is a permanent resident living in Sydney. She advised she has a wide range of friends built up over many years as she travelled through institutions relating to study and work. She maintains contact with those friends at a social level although the specific set of friends changes over time. She goes to friends’ houses at festival time to participate in festival activities. She has lived in the same share house for six or seven years. She has rarely visited India since the passing of her parents and only twice since 2012.
The Tribunal is of the view the applicant leads a well ordered and well structure life in Australia. She has a significant income, long standing associates or colleagues in a share house, an extensive range of friends with whom she shares social events and occasions, commitments to study and work. The applicant has lived in Australia for a significant amount of time, having first arrived in November 2008.The applicant has a fulfilling and busy life in Australia.
The Tribunal is of the view those ties present as a strong incentive to remain in Australia and the student visa programme is being used to circumvent the intentions of the migration programme.
The Tribunal considers cl. 12 of MD69 - the value of the course to the applicant’s future.
The applicant advised the Tribunal that her father passed at the age of 59 whilst employed as a government official in the electricity board. As he died whilst still employed his job automatically devolved to her. An appropriate position (not simply her father’s position) in the electricity board was reserved to her at a salary and level of seniority related to her academic qualifications. The applicant has significant qualifications from a highly regarded university in India. She has significant qualifications in a professional field from a university in Australia. She is a continuing member of her professional association in Australia. She has completed (by way of credit or actual study) significant studies at postgraduate level in Australia. She has had employment in Australia in her professional field. She has Certificate and Diploma level qualifications in Management. In evidence to the Tribunal she did not express any interest in working a chef in India. Notwithstanding a comment in her response to the s.359(2) request, she did not express any interest in seeking employment in a company in India. She advised the Tribunal she would pursue her right to employment in the Electricity Board at an appropriate time.
The applicant did not provide any documentary material or letters that confirmed her view her salary would be higher if she achieved a formal postgraduate qualification from Australia. The applicant did not lead any evidence that university level qualifications from Australia have any particular utility in India or lead to higher remuneration in her home country or a third country. The applicant was of the view she had a job in India. It was effectively her birth right. Completion or non-completion of a postgraduate qualification in Accounting will not impact on her ability to obtain employment or improve her employment prospects in her home country. The applicant already has the job she wants. The Tribunal also considers whether it accepts the applicant’s claim she wishes to work in the Electricity Board in the future. It is quite common for an applicant to assert a job will be found in a family company. It is quite common for an applicant to advise a position in the home country will be organised at an appropriate time. In both a s.359(2) response and in direct evidence the applicant advised the Tribunal a position in the Electricity Board was hers for the asking. The Tribunal closely observed the applicant as she gave this evidence as the assertion was essentially she had a birth-right to a position in a major enterprise in her home country. The Tribunal does not have any reason not to accept the applicant’s evidence on this point.

The Tribunal is unable to discern any relevance in the master degree in a professional field where the applicant already holds university qualifications and membership of the professional association when the applicant has a birthright to the job she seeks and has advised the Tribunal she will take.
The Tribunal considers cl. 13 and 14 of MD69 - the applicant’s immigration history.
CL. 13 of MD69 makes it clear the applicant’s immigration history refers both to their visa and travel history.
The applicant advised she is a citizen of India, first arrived in Australia in November 2008, has returned to India on two occasions since October 2012, has not applied for visas to other countries and has not travelled to other countries in the last ten years. The Tribunal has no reason not to accept this evidence.
The applicant arrived in Australia in November 2008 pursuant to a TU-573 visa granted 27 October 2008 and valid until 15 March 2013. This visa required the applicant to enrol in and continue studying approved courses in the HE sector. Conditions 8202 and 8516 were attached to this visa. From September 2009 until late 2013 the applicant enrolled and studied courses in the VET sector. During this period she was in breach of condition 8516 attached to her student visa.
The applicant applied for and was granted a temporary work VC-485 visa in the period September 2015 until March 2017. With some minor exceptions the applicant did not engage in paid employment in her professional field in this period.
The applicant has not completed any study in Australia since the conferment of her Bachelor of Accounting in February 2015. The Tribunal is aware the applicant has not been required to study in an approved course since September 2015 until the present time as her VC-485 visa and subsequent Bridging visas gave her the right to study but did not mandate study. Her results in study at CPA and via an education provider have generally been poor. The Tribunal notes there have been periods of stress in the applicant’s life. In the first period of stress during the years 2009 until 2013 when her parents died the applicant maintained her enrolment in a succession of VET courses, completed and graduated from them. This stress did not interfere with the ability of the applicant to study and work. It is to her credit she continued to study and work in this period. It is not to her credit she did not adhere to conditions attached to her visa. The second period of stress related to a medical procedure in late November 2017 and subsequent psychological counselling. The evidence and documentation provided to the Tribunal does not explain those continuing poor results in 2017 and 2018.
The Tribunal is of the view the applicant has been onshore for some time without successfully completing a qualification. The Tribunal is of the view the applicant has been using the student via programme primarily for maintaining ongoing residence.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Conclusion on cl.500.212
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mark Bishop
Member

[2018] AATA 5707

24 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Intention