Gurjot Singh (Migration)

[2022] AATA 776

Gurjot Singh (Migration) [2022] AATA 776 (4 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurjot Singh

REPRESENTATIVE:  Ms Prabhjit Kaur (MARN: 1574834)

CASE NUMBER:  2005042

HOME AFFAIRS REFERENCE(S):          BCC2019/6512985

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 February 2022 at 1:12 pm (NSW time)

DATE OF WRITTEN RECORD:                11 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 11 March 2022 at 9:46am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a registered course – lengthy stay in Australia – limited academic progress – course benefit for the applicant’s future career – applicant changed to Vocational level courses – gap in studies – applicant did not prefer online studies during pandemic – family ties to home country – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

APPLICATION FOR REVIEW

Introductory

1. This is an application to review a decision of a delegate of the Minister for Home Affairs on 2 March 2020 who refused to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth).

2. At the hearing on 4 February 2022 the Tribunal made an oral decision and gave oral reasons for that decision.

3. On 7 February 2022 the applicant’s agent requested the Tribunal to provide a written record of those reasons.

4. What follows is that record.

   Procedural aspects and the hearing

5. The delegate’s refusal was based on his finding that the applicant did not satisfy the requirements of Clause 500.212 of Schedule 2 to the Migration Regulations 1994 because he was not a genuine temporary student in Australia.

6. The Review Application was filed on 13 March 2020 and is within time. 

7. The applicant has engaged with the review process in that he responded to the Sec 359(2) Request by, among other things, filing the Online Response Form together with other documents including a Statutory Declaration from the applicant sworn on 26 October 2021 and a written submission from his agent of that date. 

8. More recently, during the applicant’s oral evidence today his agent, Ms Prabhjit Kaur, provided a medical report from a Dr Alinka Pavel dated 14 October 2021. I have been informed by her that the report was to have been up-loaded in October last year but was somehow overlooked. It is referred to in the applicant's Statutory Declaration. I will come back to look at it in more detail later in these reasons.

9. A paper file from the Department includes a copy of the Visa Application (VA) for the subject visa, other documents in support including a submission from the applicant in answer to a request from the delegate for further information.  There is also a copy of the decision under review.

10. In addition to those documents the Tribunal has obtained a PRISMS record and Movements Details for the applicant. There is nothing controversial in them, the information is substantially consistent with the applicant's documentary case and oral evidence. 

11. For the following reasons the Tribunal has concluded that the decision of the delegate should be affirmed.

    Approaching the issues in this case

12. The Tribunal is satisfied that the applicant is currently enrolled in two courses of study, namely a Diploma of Leadership and Management and an Advanced Diploma in Leadership and Management at the Global Institute (the Global L&M package). According to the COEs for these courses, the Diploma began on 25 January 2021 and was due to finish on 24 January 2022 and the Advanced Diploma was due to start on 31 January 2022 and is due to be completed on 30 January 2023.

13. In his oral evidence the applicant said that he had completed 10 or 11 units out of the required 12 units for the Diploma. He said that he expected to finish this course next week and in fact had already commenced his studies in the Advanced Diploma of Leadership and Management. The Tribunal accepts this evidence.

14. I am thus satisfied that the applicant is currently enrolled in those two courses and that he has made satisfactory progress in the Diploma.

15. The issue then before the Tribunal is the same issue which the Delegate resolved adversely to the applicant, namely whether he is a genuine temporary student in Australia at the time of this decision. 

16. In addressing that issue the Tribunal will be guided by the factors listed in Ministerial Direction No.69 insofar as they are relevant to the circumstances of this case. Among the important factors for the Tribunal to consider and weigh are, firstly, whether the Advanced Diploma of Leadership and Management at Global will add value to the applicant's future in his home country, India; secondly, whether he has a significant incentive to return to India on completion of that course; thirdly, his immigration history in Australia; and, lastly, any other relevant matter. 

17. Whilst each of those factors are important the actual weight to be accorded to them will vary depending on an applicant's overall circumstances. In this case, in considering the question of whether completion of the Advanced Diploma will add value to his future, the Tribunal needs to examine his asserted motives for wanting to study this course and his intentions once he completes it. 

18. In analysing his evidence about those matters, the Tribunal will need to look at them in the broader context of what he has done or not done since he arrived in Australia now more than 7 years ago and his explanations, such as they are, for his conduct in relation to his studies and determine by reference to those matters and other things, such as the apparent logic of events and the plausibility of his evidence, whether his evidence is credible enough to be accepted. 

19. In doing that, the Tribunal will place emphasis on his past conduct as a student in Australia as this is usually a reasonably sound indicator of whether his assertions on the core issues can be accepted at face value and, if they can, what flows from it.

20. As is well-known, the Tribunal is not only entitled to but bound to consider the evidence available to it whether that evidence was before the Delegate or not.   

    An overview of some of the evidence before the delegate

21. I have read the documents in the Department's file which include a letter from Acknowledge Education dated 21 February 2020 which outlines the applicant's study history with that provider during the period from about 2 October 2015 to 7 March 2018. I will return to this document later in these reasons and merely note at this point that, in his oral evidence, the applicant did not distance himself from the information contained in this letter.

22. The Tribunal also notes from the Department file that the applicant's VA was filed in December 2019 to enable him to study a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management at the Nova Institute. According to the COEs for those courses, copies of which are contained in the Tribunal file, the Diploma was due to commence on the 20 January 2020 and to finish on 17 January 2021 and the Advanced Diploma was due to commence on 18 January 2021 and to end on 16 January 2022. 

23. Among the delegate's concerns was that the applicant had been in breach of Condition 8202. Certainly, that concern was the subject of a request from him for further information, a request which the applicant responded to, apparently, in the form of a submission which was broadly along the lines that there had in fact been a misunderstanding about that.

24. For reasons I will come to, this is not a matter which the Tribunal need dwell on as I am prepared to assume that there was in fact no breach, technical or otherwise, of that condition at that time.  

    Findings and evidence on the review

25. Turning then to the applicant's case on the review, the Tribunal has spent a good deal of time with the applicant today. He gave oral evidence over a period, I think, of about 50 minutes during which various aspects of his case were investigated. 

26. Whilst there are some aspects of the applicant's evidence which the Tribunal is prepared to accept, I do have some ongoing concerns about his overall credibility in relation to matters in which he is not corroborated by independent records or by the objective features of the case.

27. There were numerous occasions during his oral evidence when the applicant had to be reminded of the need to address the questions he was being asked. He had considerable difficulty doing so. A good deal of his evidence was given in English because he indicated at the outset that he would prefer, or at least would be willing, to engage in English and have recourse to the Punjabi interpreter if he needed to. Whilst there may have been some occasions when he may have misunderstood the questions, and certainly on those occasions he had recourse to the interpreter, I was less than impressed with the way in which most of his oral evidence was given.

28. At the end of the day, nothing much may turn on this because, in the Tribunal's view, even if the Tribunal were to accept his evidence relating to his motives and intentions for wanting to study the L&M package, it would not assist him a great deal.

29. Turning then to the background, what follows is taken mainly from the applicant's documentary case. There may be some findings which stem from those parts of his oral evidence which are found to be reliable enough to be accepted. 

30. The applicant was born in India in 1992. He studied a tertiary course, a Diploma in Pharmacy from June 2011 to September 2013. In late September 2014 he was granted a TU-573 visa with a cease date of 15 March 2018 to study English and a Bachelor of Commerce at the Charles Darwin University in Melbourne. 

31. He arrived in Australia shortly thereafter and began studies in the English course apparently on time in early November 2014. He completed that course in January 2015. He then started the Commerce course, also on time, in early March 2015.  He accepted in his oral evidence that he engaged in studies in that course for a period of about 5 months before his enrolment was cancelled when he discontinued studies on or about 31 August 2015. Among the documents he has provided to the Tribunal is a copy of a letter from the University which is to that effect. The applicant said that he did not pass any subjects in that course although he did attend some classes during that period. 

32. In late September 2015 he enrolled in a package of Hospitality and Business courses at the Front Cooking School and associated providers which are apparently related to Acknowledge Education. These courses consisted of a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality, an Advanced Diploma of Hospitality Management and a Bachelor of Business. He appears to have started the CIII on time and completed it in November 2016. He then began the CIV and completed that on time in April 2017. He began the Diploma on 10 April 2017 and completed it on 30 September 2017. These details are contained in the letter from Acknowledge Education of 21 February 2020.

33. He says, and the Tribunal accepts, that he began studies in the Advanced Diploma but only passed 1 unit in that course before his enrolment was cancelled on or about 7 March 2018. He gave oral evidence to the effect that he exchanged correspondence with the course provider in relation to the start times for this course and the Bachelor of Business. This correspondence stemmed from the fact that the COEs which he had obtained from Stotts College in relation to these courses had incorrect start dates. He wrote a letter to Stotts on 15 September 2017 asking it to clarify the start date for the Advanced Diploma pointing out that, according to the COE for this course, it was due to start on 19 March 2018. Stotts responded immediately to his enquiry by stating that the Advanced Diploma was due to start on 25 September 2017 and to finish on 16 March 2018 and the Bachelor of Business was due to start on 19 March 2018 and to finish on 31 December 2019. 

34. The applicant has not suggested in his review case that the confusion with these dates had any significance to his enrolment or lack of progress in the Advanced Diploma.  As I have already noted, he accepted in his evidence that he only completed 1 unit in that course before his enrolment in this course was cancelled in March 2018. 

35. The applicant accepts that he returned to India for about 4 weeks during November 2017.  He said in evidence that he had not passed any subjects in the Advanced Diploma by that stage but when he returned to Australia he continued with his studies in this course and managed to pass 1 unit before his enrolment came to an end in March 2018.

36. His enrolment in the Bachelor of Business was also cancelled in consequence of his enrolment in the Advanced Diploma being cancelled. 

37. On 8 June 2018 he was granted a VC-485 visa with a cease date in December 2019 and he shortly afterwards began work as a chef. I think he may have been working at the Curry Smuggler restaurant at an earlier stage but, in any event, he was certainly working there from about August 2018. He appears to have been employed full time until September 2019 when he found work as a truck driver. He explained, and again the Tribunal accepts his evidence on this as it sounds plausible enough, that his tenure as a chef at the Curry Smuggler came to an end in September 2019. This information is contained in his Response Form and the Tribunal has no reason not to accept it.

38. On 20 November 2019 he enrolled in the package of Leadership and Management courses at the Nova Institute mentioned earlier. The Tribunal notes that, had he completed these courses in a timely manner, he would have finished them by now.

39. The VA was filed to enable him to study that package and he does appear to have commenced the Diploma on time on 20 January 2020. The applicant accepts that he withdrew from that course in about June 2020, in other words about 5 months after it began.   

40. The applicant has not suggested in his review case that he passed any subjects in that course. He said that he withdrew from the course because of two things; firstly, the onset of COVID in Australia in March 2020 and, secondly, he did not like online classes. He has led no evidence to the effect that he passed any subjects in the Diploma nor indeed is there any or any acceptable evidence to the effect that he participated in any online learning in that course. 

41. It will already be apparent to the reader that one of the concerns which the Tribunal has in this case regarding his academic history stems from the disparate nature of his studies. His enrolment in the Advanced Diploma of Hospitality Management came to an end in March 2018 but, when his VC-485 came to an end in December 2019, he enrolled in the Leadership and Management courses at Nova, courses in a very different field and which had a combined duration of some 2 years. When asked at the hearing why he decided to study in another field he said he enjoyed working in hospitality but wanted to enhance his knowledge and skills in the Leadership and Management area. He went on to say that he already had a Diploma in Hospitality Management but appeared to accept there was nothing to prevent him from re-enrolling in the Advanced Diploma of Hospitality Management at Acknowledge Education at the time he enrolled in the Leadership and Management package at Nova.

42. His evidence on this topic goes no higher than suggesting that he enrolled in that package because he wanted to enhance his knowledge and skills in that field.

43. The Tribunal finds this explanation to be most unconvincing. Nowhere in that evidence is there any real explanation as to why he did not re-enrol in the Advanced Diploma of Hospitality Management when he decided to continue with his studies here after his VC-485 visa came to an end. Logically, one would think that the package he had been engaged in for some years at Acknowledge Education would have been a priority because an important step in that package was the completion of an Advanced Diploma of Hospitality and Management. Yet, as I have said, the applicant in effect abandoned his studies in that field and switched to a Leadership and Management package simply because he wanted to study in a different field to enhance his managerial knowledge and skills. Indeed, he went so far as to suggest that the Leadership and Management package would enhance his pre-existing skills in the hospitality sector. If that is the case, he has not explained why he went down that path rather than re-engage in an Advanced Diploma of Hospitality Management, a course which would be designed to specifically enhance his knowledge and skills in the hospitality sector. 

44. He accepted at the hearing that by the time he completed the Diploma of Hospitality Management he had acquired sufficient knowledge and skills to find work as a chef but he went on to say that he needed to obtain some leadership skills. Ultimately, he said that he wanted these skills because he was looking to find work as a head chef and that leadership skills would be desirable if he wanted to run a commercial kitchen.

45. The applicant has accepted that his enrolment in the Diploma of Leadership and Management at Nova effectively came to an end as early as June 2020 when he withdrew from that course. I do not accept that the applicant has given a satisfactory explanation for his withdrawal from that course. The onset of COVID is not, of itself, a reason not to study nor is the fact that a provider necessarily switches to online learning because of it.

46. There is no suggestion in this case that the applicant was unable to effectively engage in online studies because of COVID. He simply said that he did not like that method of learning. He also said he was upset when his VA was refused but this too is not an adequate explanation for failing to engage in productive study in the Diploma of Leadership and Management at Nova. There is no medical evidence in this case to suggest that COVID impacted on him in such a way as to compromise his ability or capacity to engage in productive study in that course, nor is there any acceptable evidence to the effect that he was incapable for some other reason to engage in online studies in that course. As I pointed out to him during his oral evidence it would have been necessary for him to have engaged in online studies when he enrolled in the same course at Global towards the end of 2020. In attempting to explain this he suggested that Global gave him more assistance than what Nova had given him, but the Tribunal does not accept this evidence in that form.

47. The fact that the applicant has purported to explain his withdrawal from the Diploma of Leadership and Management at Nova on the basis he was upset or that COVID had intervened or that he didn't like online studies reflects very poorly on him and does nothing to enhance his overall credibility. 

48. The applicant's enrolment in the Diploma of Leadership and Management at Nova was ultimately cancelled on 6 November 2020 for unsatisfactory progress. This information comes from the PRISMS record but, as I say, it is broadly consistent with the applicant's own evidence that he withdrew from the course because he was not coping with COVID. It is also consistent with the information in his Response Form.

49. He then enrolled in the L&M package at Global. These enrolments were created on 10 December 2020 and, of course, these are the courses in which the applicant is currently enrolled. He has given evidence that he began studies in the Diploma on time on 25 January 2021. Although the Tribunal is prepared to accept that he did the applicant accepts that classes in that course have been online. 

1. In July 2021 the applicant sustained an injury whilst moving some belongings, apparently.  This evidence initially came from his Statutory Declaration in which he said that he worked at Curry Smuggler during the period from February to July 2021, which coincides with the date of his injury, but his evidence on this topic is not entirely consistent. In his Response Form he states in effect that he was still working at Curry Smuggler in October 2021, when the Form was completed and filed, but in his Statutory Declaration he says that he worked there until July 2021. He said in evidence today that he ceased work at that stage because of the injury to his thumb. There is a medical report which, as I have already indicated, was only provided today and which is dated 14 October 2021. This report does confirm that he sustained an open fracture to his left thumb on or about 8 July 2021 and that he had follow up treatment in August of that year and other follow-up visits from time to time. The Tribunal accepts, or at least has no reason not to, that the report contains an accurate recital of the history relating to the injury and treatment. 

2. The applicant accepted in his oral evidence that the injury did not interfere with his studies in the Diploma evidence which, given its concessional nature, the Tribunal accepts. 

3. The applicant said, and the Tribunal also accepts, that he has completed 10 out of 12 units in the Diploma at Global and that he expects to complete the course next week. He has already begun his studies in the Advanced Diploma, apparently. Of course, it's early days yet and the Tribunal is unable to form any views or make any findings on his likely progress in the Advanced Diploma but is prepared to assume that he would probably be able to complete that course on time should he now be given the opportunity. There is nothing in the way of evidence on this review to suggest that the applicant is not a capable student. He generally appears to have been a reasonably good one in the sense that, once he applies himself to his studies, he can be productive.

4. That said, it is clear on any view that he did not complete the Advanced Diploma of Hospitality Management at Acknowledge Education and, indeed, he completed only one unit in that course over a period of about 5 months or thereabouts and he has not provided an acceptable explanation for this. Of no less concern is that his enrolment in the Diploma of Leadership and Management at Nova was also cancelled towards the end of 2020 but in circumstances where he had withdrawn from that course as early as June of that year. 

5. In relation to neither of those courses has he provided an acceptable explanation for his lack of progress in them. This is a concern because of the level and nature of these courses and the periods involved. Had he engaged in productive studies in the package at Nova he would have completed those courses by now given that the Advanced Diploma of Leadership and Management was due to have been completed in January of this year. Moreover, he has not satisfactorily explained why he enrolled in those courses rather than pursue studies in the Advanced Diploma of Hospitality Management. 

6. The Tribunal does not accept his oral explanations, such as they are, for this change in direction. As noted earlier, he said that he wanted to engage in Leadership and Management studies because he felt it would enhance his knowledge and skills and his prospects for what he ultimately wants to do but this, of course, leaves unexplained why, on these findings, he did not proceed with his studies in the same courses at Nova.  In making these decisions, and in going about these things in the way he has, he has wasted considerable amounts of time and has failed to satisfactorily explain his conduct and preferences. 

7. To simply tell the Tribunal that he did not enrol in the Advanced Diploma of Hospitality Management because he wanted to do a different course does not provide an adequate explanation for not re-enrolling in that course.

8. The only reason he gave for not re-visiting an Advanced Diploma of Hospitality Management when he had the chance, that is after he had exhausted his VC-485, was because he already had a Diploma of Hospitality Management. But it is self-evident that an Advanced Diploma of Hospitality Management, for an applicant such as this one who says that he wants to find work as a chef in a reputable hotel in India, would be a very useful course and, indeed, the very course which one would have expected him to want to complete. Instead, he goes off that track by enrolling in the L&M package at Nova in courses the first of which he does not complete and then enrols in the same courses at Global towards the end of 2020 and studies for the Diploma online. He says that he did so because Global gave him more assistance but when it was put to him that he did not seek any assistance to engage in online studies at Nova he accepted that he had not in fact done so.

9. These are very unsatisfactory features of his academic record and, ultimately, of his review case. Overall, the Tribunal regards it to be less than satisfactory for an applicant who has been in Australia for as long as he has. 

10. In his Response Form and Statutory Declaration, the applicant has given evidence to the effect that he wants to finish the Advanced Diploma at Global and return to India to find work as a head chef in a five-star hotel. In the Form, which he filed in October last year, he said that he intends to work as a well-paid chef and to be promoted to a head chef and that, ultimately, he might decide to open his own restaurant. He said that the chances of getting a high paid job would be higher with an international qualification. That may well be so but the question in relation to this aspect of his case is whether the completion of an Advanced Diploma of Leadership and Management will enhance his prospects of finding work as a well-paid chef, of being promoted to a head chef and, ultimately, operate his own restaurant.

11. The applicant accepts that he already has extensive industry experience, that he was only pursuing studies in the Leadership and Management package because he felt that he was lacking leadership and management skills. He says he took advice from student counsellors and education consultants and they recommended this course based on his requirements, but the Tribunal is unable to accept that he did. It is not corroborated in any way and the objective features do not support it. He was at the relevant time employed as a chef at Curry Smuggler and the Tribunal finds it difficult to understand why he would be given advice to that effect if his career plan was then, and still is, to seek employment as a chef. 

12. He asserts in his Response Form that the L&M courses at Global would add great value to his career because they would help him get work at as a head chef or open a restaurant further down the track.

13. The Tribunal is simply unable to make any findings in this case on the evidence led to the effect that he genuinely wants to find work in a commercial kitchen at the managerial level or open a business in the hospitality sector. If the applicant genuinely had these aspirations, the Tribunal must ask itself why it is that he did not pursue the Advanced Diploma in Hospitality Management when he had the chance. That course would have given him the knowledge and skills which he says he needs to implement that plan.

14. The Tribunal is of the view that the applicant is already well qualified to find work in India as a chef. Indeed, he accepts that he is. Moreover, if he needed any additional qualifications in the hospitality sector, he had the opportunity of getting them. Instead, he makes almost no progress in the very course which would have suited his stated aspirations, namely an Advanced Diploma of Hospitality Management, before utilising a TU-485 Visa for about 18 months during which he spends about 13 months working at the Curry Smuggler. He regards this to have been great experience, and no doubt it was, but it provides no support for his claim that he now wants to study a Leadership and Management package to gain general managerial skills.

15. It seems to the Tribunal that, given his history in Australia and his overall circumstances, he should have returned to India once his TU-485 visa expired or, if he wanted to remain in Australia to continue his studies, he could and should have re-enrolled in an Advanced Diploma of Hospitality Management. Instead of doing that he enrols in a package of Leadership and Management courses at Nova which led to nothing and now the Tribunal to give him the opportunity of completing his studies in the very same package at Global, courses which he did not enrol in until towards the end of 2020.

16. The Tribunal is just not prepared to do that. The applicant has had ample opportunity to become better qualified and, even on his own account, if he wants to find work as a chef in a reputable hotel, this is something which on the evidence, and indeed on his own case, he is already well qualified to do.

17. The Tribunal is quite unwilling to infer that completion of the Advanced Diploma of Leadership and Management at Global would add value to his career prospects as a chef. It may be that it would add some value to his more general career prospects in the hospitality sector in India. The Tribunal is unable to completely discount this possibility but, ultimately, is not prepared to place any great weight on this given his unsatisfactory academic record and the fact that he appears to have made decisions which, given his experience, he should not have made. 

18. This is not a case which involves the making of reasonable mistakes from an applicant for which allowances can be made. The applicant has had ample academic and work experience in Australia.

19. In the overall circumstances of this case the Tribunal is simply not prepared to place any real weight on the fact that an Advanced Diploma of Leadership and Management could be of some value to him further down the track. Even if one accepted that it would, it is not a qualification he would need in the short term to find work as a chef in a five-star hotel in India. 

20. As to whether he has a significant incentive to return to India on completion of this course, the Tribunal does not accept that he does. If he had any incentive to return to India to find work as a chef in a reputable hotel, he would have done that long before now.

21. He has personal ties to India, that much is clear. He has parents who live there and who have been and still are financially supportive of him. The Tribunal has read the sponsorship affidavits. His father states that the applicant has plans to gain more experience in the hospitality field and ultimately to set up his own business in India. The Tribunal takes this evidence into account but places little if any weight on it simply because, if this was important to the applicant, he would have gone about his studies differently and would have gone back to India long before now.

22. Nor is the Tribunal prepared to find on the evidence that he is particularly close to his parents. In the last 7 years the applicant has gone back to India to see them once for a period of about 4 weeks in 2017, I think it was. This travel history is hardly suggestive of a very close relationship between him and them, particularly for an applicant such as this one who has wasted a good deal of time by either not studying at all or being quite unproductive. 

23. The Tribunal also accepts that his parents may have valuable assets in India which the applicant expects to inherit one day but this attracts little if any weight in the overall circumstances of this case. 

24. The applicant has been in Australia now for more than 7 years. This is a long time for a temporary international student, particularly one who has an unsatisfactory academic record.  It may be that part of this is to be explained by his extensive work history in Australia. He accepts in his Response Form that he has been employed here, either on a full or part-time basis, since April 2015, now almost 7 years ago. This work history is extensive and much of it has involved work as a chef. This suggests to the Tribunal that he has become reasonably well entrenched in the local community.

25. Although the applicant says that his parents have been supporting him he also says, and the Tribunal accepts, that he has been to some extent supporting himself.

26. On balance the Tribunal is not prepared to find that he has a significant incentive to return to India on completion of the Advanced Diploma of Leadership and Management and is not prepared to accept his evidence that he will. His history is not such as to inspire confidence in what he is saying in this regard.

27. Turning to his immigration history, the Tribunal is not prepared to find that he has been in breach of condition 8202 but the fact remains that he has had the advantage of having been in Australia for a considerable time, initially under a TU-573 visa and later under the umbrella of a VC-485 visa. He has had ample opportunity before now to complete his academic program in Australia and has acquired valuable work experience here.

28. He was subject to an 8501 (work) restriction on his TU-573 visa in 2014 and there is no evidence to suggest that he has been in breach of that restriction. But this too attracts little if any weight in the overall circumstances of this case.

29. There are no other relevant matters other than to note that India has been struggling with COVID, its variants and its ongoing catastrophic effects. The applicant has given evidence that he has been concerned about COVID in Australia and, indeed, he has put this forward as a reason why he did not study. It is reasonable in these circumstances for the Tribunal to infer that he is also concerned about the ongoing consequences of COVID in India, something which may provide an additional reason for him to want to remain here.

30. Apart from the fact that his current studies are not due to finish until January 2023, and apart from the fact that he would have by now completed the Leadership and Management package at Nova had he persevered with those studies, there are no other relevant matters of any significance. 

    Summary of findings and conclusion

31. The applicant has not demonstrated to the Tribunal's satisfaction that he is a genuine student in Australia at the time of this decision nor has he demonstrated on the evidence led that he intends to remain here temporarily for legitimate study purposes.

32. He is already well qualified to find work as a chef in India. It may well be that he will be able to progress to a head chef, move into other roles at the managerial level or set up his own business in the hospitality sector further down the track but these are things which are more likely to depend on his performance as a head chef than on him obtaining general knowledge and skills from studies in an Advanced Diploma of Leadership and Management. He has already acquired some of these skills having already completed the Diploma of Leadership and Management at Global while he was waiting for his review to be determined. 

33. In addition to those matters, there are in this case some very unsatisfactory and unexplained features of his academic record which cannot be ignored or discounted.

34. Taking those matters into account and viewed in the context of his overall circumstances the Tribunal is not prepared to find that he meets the GTE requirements at the time of this decision.

35. On these findings the Tribunal concludes that the criteria for the grant to the applicant of a sub-class 500 student visa set out in clause 500.212(a) of the regulations are not met in this case.

    DECISION

36. The Tribunal affirms the decision under review.

    Michael Bradford
    Member