Inderjit Kaur (Migration)

[2025] ARTA 673

INDERJIT KAUR (MIGRATION) [2025] ARTA 673 (5 MAY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mrs  Inderjit Kaur

Mr Harwinder Singh

Mr Jagroop Singh

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2402810

Tribunal:General Member P Hunter

Place:Sydney

Date:  5 May 2025

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

Statement made on 05 May 2025 at 2:50pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) visa – Federal Circuit and Family Court remittal – genuine student – multiple student visas – business sponsorship nominations – family and cultural ties to India – prolonged loss of study rights – limited value of course to future career – maintaining ongoing residence in Australia – decision under review affirmed        

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 573.212, 573.222, 573.223

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 31 March 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 June 2016. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a Bachelor of Business, and then a Bachelor of Tourism and Hospitality Management. The visa was in this instance refused because the applicant did not provide the evidenced required to demonstrate they were a genuine student as required by what was cl 573.223 of Schedule 2 to the Regulations.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   EVIDENCE AND INFORMATION BEFORE THE TRIBUNAL

5. The applicant is a 45 year old national of India, and arrived in Australia on 8 August 2008. The second named applicant, aged 46 years, is her husband and the third named applicant, aged 20 years, is her son. The second and third named applicants have applied for the visa as members of the family unit of the applicant and are seeking to satisfy the secondary visa criteria.

6. The student visa under review is the fifth student visa sought by the applicant. At the time of application, the applicant set out in her visa application that she intended to undertake a Bachelor of Business at the Holmes Institute, with course dates from 11 July 2016 to 31 July 2019. Further in her visa application the applicant set out the following reasons for undertaking her course:

   I have already completed a (sic) Diploma of Business. Now, I want to continue my study in the same area in higher education. The college has already accepted me for admission.

   This will help me to gain knowledge and also employment.

7. On 10 October 2016, the Department refused the visa because the applicant did not satisfy cl 573.222 as she had not provided evidence of enrolment in an acceptable course of study.

8. The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the Department decision on 29 October 2016. Upon review the applicant supplied an enrolment in a Bachelor of Tourism and Hospitality Management, at by Academies Australasia Polytechnic with course dates from 20 March 2017 to 8 November 2019. On 31 January 2017, the matter was remitted for reconsideration, with the direction that the applicant satisfied cl 573.222 of Schedule 2 to the Regulations.

9. Upon reconsideration, in response to a request from the Department the applicant provided a statement of purpose which set out the following relevant information:

   1. The degree in Hospitality Management was very important to her because completion of a program in the hospitality sector would be the best chance for a unifying career development within her profession. She loves the hospitality profession and has worked within several restaurants as a cook, and has learnt the basics of business skills and the operations of the hospitality sector.
   2. She preferred to study further in the hospitality field as her career goals had altered and she was imagining a bigger vision for her life after leaving Australia. She wished to polish skills and facilitate the progression of her career. She was more inclined towards business aspects and looked upon business strategy and leadership as her main aim in life. She wanted the opportunity to case study the development of big brands in hospitality and how they cope with business demands in extreme circumstances.
   3. She aimed to start her own business, and wished to sharpen her skills in the hospitality industry and acquire necessary skills before going into the field in India. She could utilise the skills in a developed country like Australia to exploit opportunities back in India which is still a developing country. She also took advice that a formal education from a good education provider was a competitive advantage in running a business.
   4. The Bachelor of Tourism and Hospitality Management, could enhance her skills in every aspect of the hospitality field. She did a lot of research about course curriculums and on the websites of various institutions in various countries. She was impressed by Academies Australasia Polytechnic. She was well aware of the program structure and quality of the facility.
   5. Australian qualifications are recognised world-wide. It has professional systems, a safe environment for students and the experience of multi-culturalism.
   6. There is plenty of scope in the Indian market, particularly in the restaurant and take-away business, for a good manager with operational knowledge. The population of India was growing, and the upper middle class increasing, and consequently the demand of restaurants. Further the rapid rise in personal disposable income and changing lifestyle of the younger generation augurs well for the hospitality sector in India.
   7. She was hardworking and ready for a new beginning with a career in the hospitality sector. She aimed high because it is a highly competitive atmosphere. After completing her bachelor degree she will definitely be able to get the ball rolling for a hospitality career. After completing the course she will definitely return to India.

10. The delegate refused the visa on 31 March 2017. In their decision record they set out the following reasons for refusal (in summary):

    1. The applicant was granted her initial student visa on 12 June 2008, and arrived in Australia on 8 August 2008. This was to study an Advanced Diploma of Hospitality Management. Until 15 October 2014, she held a student or associated bridging visa, then she was granted a Temporary Work (Class UC)(Subclass 457) visa. On 16 February 2016, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) of the Subclass 457 visa, as her sponsor had advised that she ceased employment on 18 September 2015. Since she ceased employment the applicant had lodged three different business sponsorship nominations, including one lodged on 26 October 2016, which was four months after the lodgement of her student visa application. The applicant was further awaiting the outcome of judicial review of the cancellation of her Subclass 457 visa. The applicant had been asked to provide comment as to her intentions by the Department but failed to do so. The delegate found that the applicant’s continued pursuit of business sponsorship onshore was an indication that she sought enrolment to remain in Australia for an extended period for the purposes of employment and examining other migration pathways.
    2. The applicant’s Confirmation of Enrolment (CoE) was approved on 17 January 2017, more than 12 months after she cease employment with her previous business sponsor. The delegate found the sequence and time of events, and the applicant seeking enrolment after a lengthy delay were such that the applicant was more likely to have been motivated by factors other than a genuine interest in the area of study. It appeared that she sought the enrolment for the purposes of the visa application.
    3. The applicant had provided evidence of completion onshore of a Diploma of Management with her visa application. This course would generally enable her to seek advance standing in a Bachelor level course and shorten the period of enrolment. There was no indication that the applicant had been given advance standing which would enable her to complete her course sooner and return to her home country sooner. This further supported that the applicant was not undertaking her course for the reasons declared.
    4. The applicant’s course would see her remain onshore until at least November 2019, which would bring her time onshore on temporary visas to over 11 years. This was difficult to reconcile with her claim that she was a temporary resident, as did the fact that the applicant had her husband and child included in her visa application. The delegate placed weight on the applicant’s circumstances onshore.
    5. The applicant’s Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had been enrolled in an Advanced Diploma of Hospitality Management, A Certificate IV In Frontline Management, a Diploma of Management (x2), an Advanced Diploma of Management, an Advanced Diploma of Business, an Advanced Diploma of Marketing, General English (Elementary to Advanced), and a Certificate III in Automotive Mechanical Technology.

11. The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the Department decision on 11 April 2017 and provided a copy of the decision record of the delegate.

12. The former representative of the applicant provided submissions to the Tribunal dated 19 March 2018 which set out the following material (in summary):

    1. There was no equivalent course that the applicant could undertake in her home country in terms of standard and quality.
    2. It is not disputed that the applicant had completed a number of courses in Australia. After her arrival it took her time to navigate the Australian education system and improve her academic skills, English language ability and knowledge. It was difficult for her to choose the best direction for higher education. The applicant was far from unusual in having to undertake a number of lower level qualifications before identifying her strongest aptitudes and interests.
    3. Although the applicant had completed several diplomas and an advanced diploma she greatly aspires to obtaining a bachelor level qualification, relevant to the industry she has obtained interest and ambition. Her account of her deliberations about what academic direction she should take, and the sparking of her interest in hospitality and tourism while working as a chef is completely plausible.
    4. The study of a bachelor level qualification is completely consistent with the applicant’s current level of education and will assist her to obtain employment in her home country. It will also significantly improve her remuneration.
    5. Since the cancellation of her Subclass 457 visa, the applicant had contacted a number of hotels in India regarding potential employment. It had been made clear to her that a diploma level qualification was insufficient to secure her the nature and type of employment to which she aspires when she returns. When the family settles in India she needs to obtain a good job to secure the best possible future for her child, who is academically talented and also a gifted cricketer.
    6. The applicant applied for entry into the bachelor degree prior to the cancellation of her Subclass 457 visa, although after receiving the NOICC. She regrets having accepted her employers nomination for the Subclass 457 visa as it resulted in her losing her study rights. She had not planned to apply for a skilled visa but met an employer while a customer and was persuaded to go work for him. She was a talented cook, and was persuaded by the economic benefit to her family of working in a restaurant. The work she did during this period inspired her ambition to become highly skilled in hospitality, in order to build a secure future in this industry on her return to India.
    7. During the period that the applicant held a Subclass 457 she had already determined that she wanted to return to India to enter the hospitality industry there. She hoped to secure a job in a major city such as Delhi, both for the reasons of employment opportunities and the progressive environment was in the best interests of her son.
    8. The applicant never intended to seek residence in Australia, the only visas she has held is a student visa and a single Subclass 457 visa. She simply wanted to study in Australia, and then in the course of studying, was given the opportunity to work, and was sponsored for the Subclass 457 visa. She subsequently lost her study rights and had this not happened she would be part-way through her Bachelor of Tourism and Hospitality.
    9. The applicants’ did not dispute that there is an economic disparity between the lives of people working in India, compared with those in Australia, however the disparity can be mitigated by the applicant obtaining a higher level qualification which would be highly regarded.
    10. The applicant has one sibling who is an Australian citizen resident. They do not have any property and are not employed in Australia. Her parents and two other siblings live in India. All of the family of the second named applicant are in India, and his family own land and a home. He has obligations to look after the land and home. The applicants’ see themselves as having a good future in India once the applicant is qualified to obtain employment in her chosen field.
    11. If successful in the review of her student visa refusal, the applicant intends to withdraw the judicial review application of her Subclass 457 visa cancellation. She will complete her degree as soon as she can and be ready to return home.

    xii.The applicant had not turned her mind to seeking advance standing in her course due to previous studies. She had been unable to start the course as she had been denied study rights. In the event she is successful on review, she will take advantage of any advance standing which would enable her to complete her degree sooner and save her time and money.

    13. The applicant’s degree would build on or complement her existing qualifications. She has made relevant enquiries in the hospitality and tourism industry in India and is confident that a bachelor qualification will assist her to achieve the type of employment she aspires to in the future.
    14. The applicant has at all times complied with her visa conditions. Although her Subclass 457 visa was cancelled this was outside the control of the applicant as the business ceased operating.
    15. The applicants have planned their return to India. The second named applicant will make some preliminary return visits to make arrangements for the family property there, and regarding schooling for the third named visa applicant, and to arrange housing for the family prior to their return.

13. The applicant appeared before the AAT on 23 March 2018, to give evidence a present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The representative of the applicant was also present during the hearing. At the hearing, the applicant provided to the Tribunal the following documents:

    • A Certificate of Completion of a General English course with dates from 25 August 2008 to 26 September 2008.
    • A letter from the Hospitality Institute of Australia dated 1 June 2010, confirming that the applicant was enrolled in an Advanced Diploma of Hospitality Management on a full time basis. She commenced her course on 17 November 2008 and completed units in order to achieve competency level equivalent to a Certificate III in Hospitality (Commercial Cookery) on 20 May 2010.
    • Statement of Attainment issued by the Hospitality Management Institute dated 1 June 2010.
    • Letter from Barkley International College dated 14 December 2010, verifying that the applicant had met the requirements of the Certificate IV in Business.
    • Letter from Barkley International College dated 25 May 2011, confirming that the applicant had successfully completed and met all the requirements for the Certificate IV in Business, for studies undertaken between 10 May 2010 and 7 November 2010.
    • Certificate of Completion of the Certificate IV in Business, dated 25 May 2011, and statement of attainment.
    • Letter from Barkly International College dated 30 June 2011, confirming that the applicant had successfully completed and met all the requirements for the Diploma of Business, completed on 8 May 2011.
    • Certificate of Completion of the Diploma Business, dated 30 June 2011, and statement of attainment.
    • Letter from Technical Education Development Institute, dated 19 August 2013, confirming that the applicant had met all the requirements for the Diploma of Management. She commenced the course on 5 May 2012 and completed on 30 October 2012.
    • Certificate of Completion of the Diploma of Management, dated 19 August 2013, and statement of attainment.
    • Letter from the Victorian Institute of Culinary Arts and Technology, dated 19 August 2013, confirming that the applicant had received credit transfers in the Diploma of Management, for her studies from other institutes.
    •  Certificate of Completion issued by the Victorian Institute of Culinary Arts and Technology in the Diploma of Management, issued 19 August 2013.
    • Certificate of Completion issued by the Victorian Institute of Culinary Arts and Management, in the Diploma of Management, dated 19 August 2013. Result transcript and statement of attainment.
    • Letter from the Technical Education Development Institute, dated 26 September 2014, stating that the applicant was enrolled in the Advanced Diploma of Business, her course commenced on 15 January 2013. The CoE was cancelled due to non-payment of fees on 30 June 2013 and her last day of study was 19 May 2013.
    • Academic transcript dated 26 September 2014 issued by the Technical Education Development Institute in the Advanced Diploma of Business.
    • Letter to the applicant dated 22 April 2010, from Hospitality Institute of Australia, final warning, overdue tuition fees.
    • Letter of intention to report for non-payment of tuition fees, dated 3 May 2010, from the Technical Education Development Institute.
    • Letter dated 22 April 2010, from the Technical Education Development Institute. Regarding poor attendance record.
    • Completion letter from the Victorian Institute of Culinary Arts and Technology, Hospitality Training Package, commencement date 1 July 2013, completion date 10 September 2013.
    • CoE in an Advanced Diploma of Management with course dates from 15 September 2013 to 30 August 2014, at Barkley International College, created on 15 September 2013.

14. On 25 March 2018, the representative of the applicant provided submissions and a document entitled “Inderjit Kaur – Study in Australia”.

15. On 10 April 2018, the AAT affirmed the decision of the Department to refuse the visa.

16. On 14 May 2018, the applicants appealed the decision of the AAT to the Federal Circuit and Family Court of Australia. By judgment dated 11 December 2023, the matter was remitted to the AAT for reconsideration

1. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

2. On 25 March 2025, the Tribunal received submissions from the representative of the applicant and the following documents:

   ·    Visa Entitlement Verification Online (VEVO) details check for the applicant.

   ·    Letter of offer from the Imperial College of Australia to the applicant dated 25 March 2025, in a Graduate Diploma of Management (Learning).

   ·    CoE in a Graduate Diploma of Leadership and Management (Learning) at Imperial College Australia with course dates from 7 July 2025 to 4 July 2027, created on 25 March 2024.

   ·    Statutory declaration by Indraj Rangpuri, confirming he will act as financial sponsor of the applicant.

   ·    Extract of passport of Indraj Rangpuri.

   ·    Summary of bank accounts for Indraj Rangpuri.

3. On 31 March 2025, the Tribunal received further submissions from the representative of the applicant and the following additional documents;

   • A receipt for payment of $4,000 towards course fees.
   • Inderjit Kaur – Study in Australia submission as provided to the AAT on 28 March 2018.
   • Decision record dated 15 June 2016, of the cancellation of the applicant’s Subclass 457 visa.

4. In their submissions the representative of the applicant set out the following information (in summary):

   1. The applicant does not have permissions to study as part of her current bridging visa.
   2. The applicant maintains substantial personal and cultural ties to India. Her parents reside there and are of advancing age, requiring the applicant to assume increasing carer responsibilities. All of her siblings are based in India. The entire family of the second named applicant are also in India. He holds a moral obligation to look after his parents. The third named applicant is a highly promising cricketer, it is the family’s plan to eventually return to India and to allow his to pursue his sporting ambition through India’s well-established development pathways.
   3. The applicant has limited ties to Australia beyond her temporary stay.
   4. Her proposed course is highly valuable and strategically aligned with her previous academic pathway and career objective. It builds on her existing qualifications in business, management and hospitality providing her with advanced level skills in organisational thinking and people development. These are areas currently in strong demand within India’s dynamic hospitality, tourism and vocational training sectors.
   5. Upon completion of her course, the applicant will be well positioned to secure employment in roles such as hospitality manager, training and development manager, business development manager, organisational learning consultant, vocational trainer or assessor.
   6. The applicant’s migration history demonstrates genuine participation in Australia’s student and temporary migration programs. The gap in her studies and prolonged stay on a bridging visa can be attributed solely to the loss of study rights following the Subclass 457 cancellation. She has pursued studies genuinely.

5. The applicant attended a hearing on 2 April 2025, before the Tribunal via MS Teams video. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages. The applicant spoke to the Tribunal both in English and Punjabi, she confirmed that she had understood the interpreter at the beginning and conclusion of the hearing and that she had provided to the Tribunal all relevant evidence that she wished for the Tribunal to consider. The second and third named applicant did not appear on video before the Tribunal. It was confirmed by the Tribunal at the commencement of the hearing that the second named applicant did not wish to give evidence. He was present during the applicant’s evidence and the Tribunal was at time required to direct him not to prompt the applicant in her evidence. The Tribunal is satisfied that the applicant had a reasonable opportunity to participate in the hearing and provide evidence is support of her application. The applicant’s representative was also present for the hearing and provided with the opportunity to present submissions.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In the present case, as the applicant currently is enrolled in a Graduate Diploma of Management (Learning) as her principal course, the subclass that may be granted is Subclass 573.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl 573.223. Clause 573.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)     the Minister is satisfied that 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)     …

8. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. The applicant was asked at the hearing why she could not do similar studies in her home country and she told the Tribunal that there were not opportunities to study much in hospitality in her home country. When questioned, she claimed that she had checked but did not expand on her research. The applicant said that she came to Australia to complete higher level studies and the visa under review was just part of this process of finalising what she wanted to achieve in order to start up her own business. The Tribunal questioned whether the applicant was really undertaking hospitality related studies with her current enrolment, and the applicant acknowledged that was more on the business side. She said that she was already a qualified chef and could operate her business very well with these talents but claimed that she believed that her course would expand her potential for future roles and she would learn new ways of thinking. The Tribunal noted that the applicant originally intended to undertake a Bachelor of Business when she applied for the visa, then it was a Bachelor of Tourism and Hospitality Management, now she was proposing a Graduate Diploma of Management, and she was questioned about these changes in course direction. The applicant said that because she was on a bridging visa without study rights, she was unable to obtain admission into a bachelor level course, she also said that she did not have much of an idea about the Graduate Diploma of Management (Learning) but she was positive as she still believed that it would provide her with opportunities and new knowledge to manage her future business. The Tribunal was not satisfied that the applicant had demonstrated that advanced hospitality related studies would be unavailable to her in her home country. While acknowledging the current obstacles faced by the applicant in obtaining an enrolment on her current bridging visa, the Tribunal holds concerns that it is a course that will assist the applicant in the future, or whether the enrolment has just been obtained for the purposes of the visa application. Given the applicant’s age, the time that she has already spent in Australia undertaking studies, and her personal circumstances, the Tribunal was not satisfied that the applicant had reasonable reasons for undertaking further studies in Australia than her home country.

11. The Tribunal has considered the extent of the applicant’s personal ties to her home country. It notes the submissions that the applicant has maintained substantial personal and cultural ties to India, and that both herself and the second named applicant hold moral obligations to return to look after their parents. At the hearing, the applicant gave evidence that her parents were really old and needed her, she said that her mother had recently had heart problems and her father was diabetic and also, due to her sister’s current obligations in respect of her own children, she was not able to assist them. The applicant further claimed that several of her family members has passed away in the last few years, including her brother, and she had three elderly uncles for whom she was responsible. She told the Tribunal that her husband’s family also wanted him to come back. The Tribunal went on to raise with the applicant, pursuant to the provisions of s 359A of the Act, information contained in the decision record of the AAT in matter 1609043, which was the review application in respect of the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The relevant information is that she had submitted to the AAT at the time of review hearing in November 2016, that her marriage was a love marriage and that no one in her family had attended her wedding, as neither of their families approved of their marriage, she claimed that they had limited contact with their families. Furthermore, that when the applicant returned to India in September 2014, she had stayed in a hotel because she could not visit her family. She had no contact with her father, her brother did not speak with her, she was estranged from her sister, and her mother only visited her briefly at a hotel. The applicant was informed that the Tribunal considered this relevant because although she was now claiming that she wished to return to India and take care of her family, she had previously claimed she was not close to her family, and if the Tribunal relied upon the information it may have concerns about the reliability of her evidence and not be satisfied that she had strong ties in her home country. The applicant responded that with age things had changed, her brother had died and her sister was in a lot of pain, she said that her family regret that they were wrong and now think that her husband is a good man. She claimed that the situation had completely changed. The applicant also told the Tribunal that her husband’s parents were deceased, but she claimed that he had a good relationship with his brother and sister. Additionally, the Tribunal has also had regard to the fact that the applicant and her family have returned only on one occasion to India since their arrival in 2008, their visit in 2014 when she stayed in a hotel. Upon considering the evidence, while it is possible that the applicant may wish to visit her home country again, even if she has indeed reconciled with family members, the Tribunal is not satisfied that they provide a significant incentive for her to wish to return permanently.

12. The Tribunal asked the applicant about her resources to start a business upon return to India. She claimed that her husband had some land, and that they could use this to get a loan. She also gave evidence that it was rental from this land that was in part being used to support herself and her family while awaiting review. Again, the Tribunal raised with the applicant information pursuant to the provisions of s 359A of the Act. The relevant information was contained in the decision record of the AAT in matter 1609043, the review application in respect of the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The information was the claim that the applicant’s husband had sold his land in India to purchase an Indian grocery store at Hoppers Crossing for $50,000, Victoria. The applicant was further informed that the information was relevant because if relied upon the Tribunal may not be satisfied that the land continued to exist and that she had an economic tie to her home country, or an economic resource in India for a future business if that is what she genuinely intended. The applicant responded that when her husband sold the land in 2013, it was only a portion of his land. She also claimed the purchase of the business had not proceeded. The Tribunal has also had regard to the fact that no evidence of any land ownership has been submitted at any period in relation to the review application. It remains that the applicant has not demonstrated any corroborative evidence of economic ties to her home country that the Tribunal is satisfied would act as a significant incentive for her to return or to assist any future business.

13. The Tribunal has also considered the claim by the applicant that the third named applicant is a promising cricketer, and there was a plan to pursue his sporting ambitions through well-established development pathways in India. At the hearing, the applicant was asked why, if the third named applicant possessed this talent, he had not returned to explore this pathway himself. The applicant replied that good training was available in large cities such as Chandigarh and Delhi, and he was young and needed her support. It was noted that third named applicant was now 20 years of age and the applicant would have the Tribunal accept that she had supportive family in her home country. The applicant was asked whether her son was involved in any training programs in Australia, she said that in the past he had played for his school, currently he was not engaged in playing cricket even with a local team. In assessing this evidence, it is not demonstrated to the Tribunal that the pursuit of the third named visa applicant’s cricket aspirations are a circumstance in her home country that would act as a significant incentive for the applicant to return. The third named applicant is not currently studying, she claimed that they had attended some universities when he finished school but because he was on a bridging visa there were problems with universities offering enrolment. The applicant said that she wanted now to quickly complete her education and get her the second named visa applicant’s education on track. The Tribunal was not satisfied that a further two years in Australia while the applicant finished her education would assist the second named visa applicant in getting his education back on track in his home country.

14. The Tribunal accepts that the applicant does not have any military service commitments. The applicant also claimed that there were no incidents of civil or political unrest of concern, and she maintained that her husband had good connections with politicians. Once more, pursuant to the provisions of s 359A of the Act the Tribunal identified to the applicant information contained in the decision record of the AAT in matter 1609043, the review application in respect of the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The particular information was that she had claimed that her Subclass 457 visa should not be cancelled because due to her love marriage and estrangement from her family she had concerns about returning to India and that she could not safely return to Amritsar with her son, the third named applicant. The Tribunal identified to the applicant that the information may be relevant because if the Tribunal relied upon it, the Tribunal may consider her evidence in relation to her student visa review as inconsistent with her claims in the past, and also have concerns about her relevant ties to her home country. The applicant responded that the death of her brother in 2020, had changed the family outlook. Now they were feeling lonely, they are old and vulnerable and she did not think that her family in India were safe without her. The various inconsistencies in the claims made by the applicant, as identified above, leave the Tribunal unsatisfied as to the reliability of claims of her ties to her home country.

15. As to the applicant’s potential circumstances in Australia, she is residing with her immediate family members. Although it is claimed that her husband has property interests in India, he has not return to pursue these. Although it is claimed that the third named visa applicant is academically talented and a gifted cricketer, there is no evidence that he has taken steps to explore his options in his home country. The applicant is currently financially supported by her cousin, as are the second and third named visa applicants. This has been the case for some time and this level of financial support, in the assessment of the Tribunal indicates a strong family tie. While in previous submissions it was claimed that the applicant had a sibling onshore, she maintained that she did not. The Tribunal accepts that this may have been either a temporary situation or erroneous submission. The applicant has been in Australia, with the second and third named visa applicant since 2008, and they are seeking to remain for a further two years, which would bring their time onshore to 19 years. This is not considered a temporary stay and indicates that the applicant is using the student visa to maintain ongoing residence.

16. All visa applicants are living in Hoppers Crossing, Victoria. The applicant has been living at this locality since the visa application, she told the Tribunal at hearing she had been in the same residence for the last six years. She claimed that she was sharing her home with another family. When asked about her connections with her community, the applicant said that she had friends who helped her family financially and that she had connections here and there in the community. The second named applicant was a freemason, and had a good relationship with his brothers and regularly attended meetings. The Tribunal asked the applicant if she or the second named applicant had any businesses in Australia and she claimed that they did not, she also claimed that they had not had any businesses in the past. Again pursuant to s 359A the Tribunal identified to the applicant information contained in the decision record of the AAT in matter 1609043, the review application in respect of the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. The particular information was that they in 2016, second named applicant had been working in the Indian grocery store business they owned since 2013 and the business employed two employees. That the applicant and the second named applicant had invested significant money in the business and that it would take time to sell and that they would not have sufficient time to get out of the business before they had to depart Australia, if her visa was to be cancelled. The Tribunal identified that the information was relevant because if the Tribunal relied upon it the Tribunal may consider that her evidence to the Tribunal about not having any business interests in Australia lacked reliability, which may form a reason for affirming the decision under review. The applicant said that she did not know how that came to be reflected in the decision record, they never bought the business. She claimed that the second named applicant was working in an Indian grocery store, they had wanted to buy it but it fell through. The Tribunal is not satisfied that the evidence of the applicant is consistent with earlier claims she has made about her ties to Australia. It is apparent that she and the second named applicant have, at least in the past had an intention to operate a business in Australia.

1. Having been present in Australia since 2008, it is accepted that the applicant has a good knowledge of living in Australia. She conceded that she did not know too much about the Graduate Diploma of Management (Learning). While any form of education may present new ideas and a new way of thinking, the Tribunal is not satisfied that she has demonstrated that her course is higher level hospitality study. This further adds to the concern of the Tribunal that the applicant is using the student visa program to maintain ongoing residence.

2. As to the value of the applicant’s course, she claimed that she just wanted to do the higher level study and that this had always been her intention with her studies in Australia. The Tribunal has noted that the visa application under review is the fifth student visa application of the applicant. It is considered if the applicant genuinely did desire higher level qualifications she would have pursued these at an earlier date. As discussed with the applicant at hearing, although she had intended to pursue an Advanced Diploma of Hospitality with her initial student visa, she only completed part of that course, sufficient for her to achieve the equivalent of a statement of attainment in Certificate IV in Commercial Cookery.[1] Then she transferred to lower level studies at the Certificate IV in Business, and on to the Diploma and then the Certificate IV and Diploma in Management. Even though she had credit from her Business Diploma studies she appeared to have studied Management, at two different institutions. She had enrolled in an Advanced Diploma of Business, but abandoned these studies to pursue her Subclass 457 visa. It was put to the applicant that if she had only ever come to Australia for her higher level education, she would have taken steps to achieve tertiary or higher level qualifications at an earlier time. The applicant responded that she was not aware in the past what studies would be the most relevant for her business and future. However, she maintained that all her studies were relevant to her future business in India. The Tribunal considered that if the applicant genuinely did intend to open a business in India she would have taken some steps to do this after achieving her first few qualifications in Australia. While it is accepted that the applicant’s course is consistent with improving her current level of education, the Tribunal, is not satisfied that the applicant’s ongoing pursuit of education would be of value to her future, given that she claims she is already a qualified chef, the courses she has already completed, her age and circumstances. It is not demonstrated to the Tribunal that the further delay, course costs and significant expense of a further two years onshore for that applicant and her family, will assist her to obtain employment or improve her employment prospects in her home country. It has considered the applicant’s claims that she requires higher level qualifications to establish herself in the big cities such as Chandigarh and Delhi. As set out above, it is not satisfied that the applicant needs to establish herself in these larger cities for the cricketing aspirations of her son. Furthermore, the Tribunal has difficulty also reconciling the claims that she wishes to establish herself in these cities with her claims that she needs to return to provide safety and support her vulnerable parents. These considerations all undermine for the Tribunal the reliability of many claims of the applicant.

   [1] Letter from the Hospitality Institute of Australia dated 1 June 2010, submitted to the AAT in June 2018

3. Furthermore, while the Graduate Diploma of Management (Learning) may assist the applicant in critical thinking, and to train others in this regard, the Tribunal is not satisfied that it is relevant to her proposed plan of establishing her own restaurant/takeaway business. It has considered her claims that she needs a good job when she returns to accumulate funds and assess the market for her business. It is considered that the applicant has skills as a chef and business related courses that could already assist her in employment. Although the applicant repeated to the Tribunal at her hearing that she was getting old and that she did not have much time to waste, it holds concerns that her further study will genuinely add value to her career. It is not satisfied that it will improve her remuneration in her home country in hospitality, given her experience and existing qualifications, and having regard to the time and expense of further study.

4. The immigration record of the applicant is of considerable concern for the Tribunal. The applicant claims that although she had applied for and was granted a Subclass 457 (Temporary Work (Skilled)) visa in the past, this was only because a beneficial employment opportunity arose, and she thought that she should get some experience. The Tribunal notes, as set out in the decision record of the delegate, that the applicant applied for the visa under review after she had received a Notice of Intention to Consider Cancellation of her Subclass 457 (Temporary Work (Skilled)) visa on 16 February 2016. The applicant submitted that it was not her fault that her former employer closed his business, she said that as her main task was to study, she decided to go back and complete her study and return to India. The material before the Tribunal, as set out in the decision record of the delegate, is that she did not just determine to complete her study, but that she had also actively pursued a review to have the Subclass 457 visa cancellation overturned and also pursued three further sponsorship opportunities. This conduct appears to demonstrate to the Tribunal that she was pursuing two migration pathways and that she may be using the student visa program to maintain residence. The applicant told the Tribunal that the reason she pursued a review was because she did not want to have a bad record with the Department of Home Affairs. She told the Tribunal at the hearing that she had pursued other sponsorships because that was what she was told to do by her representative within 90 days. The Tribunal was not satisfied that the applicant was just trying to clear her immigration record, or that she just pursued new sponsorship for 90 days. Pursuant to the provisions of s 359A of the Act, the Tribunal identified to the applicant information that after her Subclass 457 visa was cancelled in June 2016, she had applied for a review before the AAT which affirmed the decision in 2017, and then she appealed the decision to the Federal Circuit and Family Court with proceedings ongoing until 2021. The applicant was informed that this was relevant because if the Tribunal relied upon the information, it may consider that she was pursuing both visa pathways and using the student visa program to maintain residence. The applicant replied that she only maintained proceedings to have the Subclass 457 visa cancellation overturned because she wanted to prove that she had done nothing wrong and that the cancellation was not her fault. The Subclass 457 cancellation decision submitted by the applicant sets out that her position ceased when her employer ceased operating their business. It is accepted that these would be circumstances largely outside the control of the applicant. However, the Tribunal does not accept that the applicant maintained a review of this decision for the sole purpose of clearing her name. In the assessment of the Tribunal, if the applicant had determined to just complete her studies and go back to India when she applied for the visa under review, she would not have maintained proceedings to overturn the visa cancellation for a further five years. Her pursuit of this pathway as well as the visa under review indicates to the Tribunal that the applicant applied for the student visa as a means of maintaining residence, and further circumvent the intentions of the migration program.

5. As set out above, the considerable length of time that the applicant has spent in Australia is of significant concern for the Tribunal. Additionally is the fact that she is seeking to remain for a further two years to undertake a course that she does not know a lot about and in the assessment of the Tribunal is not of considerable value. The applicant has completed a series of short vocational level qualifications, and although she claims she aspires to higher level qualifications, has not demonstrate pursuit of them until she applied for the visa under review, her fifth student visa. The Tribunal has also considered the claims of the applicant that she was too old to be eligible for a Subclass 485 (Temporary Graduate) visa, and that due to her age other visa pathways were now closed, she said that she accepted that she would have to return to India and she did not have a permanent residence pathway. While the applicant may have limited other pathways to remain, it remains that it appears to the Tribunal that with her proposed further studies, she is using the student visa program as a means to maintain ongoing residence.

6. As to other matters, the applicant claimed that she had fought for so long for justice and that the Tribunal and the Department should accept, as did the Federal Circuit and Family Court that she was a genuine student. The Tribunal accepts that in its previous decision, the AAT may have misdirected itself and not considered all factors of the Direction. However, it does not consider that the success of the applicant in her appeal created circumstances where there was a finding or a direction by the court that the applicant otherwise met the requirements of cl 573.212 of  Schedule 2 to the Regulations.

7. The Tribunal also had before it a copy of the Provider Registration and International Student Management System records. The relevant information contained in those records is set out in the decision record of the delegate. The Tribunal accepts the evidence of the applicant as to the courses that she has completed, and further accepts her evidence that she did not in the past pursue Motor vehicle studies. The Tribunal places no further adverse weight on these records.

   Conclusion

8. In weighing all the evidence and submissions with respect to the factors identified in Direction 53, the Tribunal is not satisfied that the applicant has reasonable reasons for pursuing further studies in Australia rather than her home country, it is not satisfied that she has significant family or economic ties to her home country. While the Tribunal is prepared to give the applicant the benefit of the doubt and accept that she may have reconciled with some members of her family, it is not satisfied that the applicant’s circumstances demonstrate a significant incentive to return. The Tribunal has ongoing concerns about the reliability of the submissions of the applicant in relation to her ties to her home country, given evidence she has provided in other proceedings. The Tribunal considers that the applicant has not demonstrated the value of her proposed course, given the additional cost, the delay in opening her proposed business and while it may relate to training staff  in a large organisation, the Tribunal is not satisfied as to its value in respect of her intentions of establishing a hospitality business. The Tribunal considers the fact that the applicant in the past has pursued a Subclass 457 visa in the first instance may indicate a desire to pursue this pathway to residence, it is not satisfied that the claims of the applicant that it was just an opportunity for work experience are reliable. Particularly, if the Tribunal is to have regard to the time that the applicant spent pursuing a review of the cancellation of this visa. Furthermore, the Tribunal places considerable weight on the significant time that the applicant has already spent in Australia as an indicator that the student visa is being used primarily for maintaining ongoing residence. In the assessment of the Tribunal there are limited factors favourable to the applicant, it accepts that she does not have military service obligations, that she has knowledge of Australia, and that she is improving her level of education. Overall, given the applicant’s study history, circumstances in her home country, potential circumstances in Australia, immigration history and the lack of value of the course to the applicant’s future, the Tribunal finds that she is using the student visa program to circumvent the intentions of the migration program. The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student or that she intends to stay in Australia temporarily. Accordingly, she does not meet cl 573.223(1)(a) of Schedule 2 to the Regulations.

9. The Tribunal has found the applicant does not meet an essential requirement of cl 573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

10. As the applicant has not met one of the primary requirements for the visa, it follows that the refusal of the visa applications of the second and third named visa applicants, who are seeking to rely on the secondary visa criteria as members of the family unit of a person who satisfies the primary criteria, are also affirmed, because they cannot satisfy cl 573.223(b) of Schedule 2 to the Regulations.

    DECISION

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

    Date(s) of hearing:  2 March 2025   

    Representative for the Applicant:           Mr Thomas Cherian