Kumar (Migration)

[2020] AATA 3127

Kumar (Migration) [2020] AATA 3127 (20 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rajesh Kumar
Mrs Kusum Lata

CASE NUMBER:  1821258

DIBP REFERENCE(S):  BCC2015/1447336

MEMBER:Wendy Banfield

DATE:20 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 20 April 2020 at 12:16pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court remittal – genuine temporary entry as student – several course changes – limited academic progress – limited incentives to return to India – limited value of studies to future career – maintaining residence in Australia – working in breach of visa conditions – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 572.223, 573.223; r 1.12

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 May 2015. The delegate decided to refuse to grant the visas on 22 July 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted 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); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 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. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations because it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The primary applicant (the applicant) is a citizen of India and is currently 34 years old. The secondary applicant (Ms Lata) is the wife of the applicant and is 36. The applicant arrived in Australia on 26 September 2007 as the holder of a Subclass 573 Student visa. Since then he has returned to his home country four times, the last visit being in 2013/14. Ms Lata arrived in Australia on 2 August 2014 as a dependent on the applicant’s Subclass 485 visa that he then held. At the time of the hearing Ms Lata had returned to India once, in 2015.

5. The matter is before the Tribunal because of a Federal Circuit Court order remitting the case to the Tribunal for further consideration.

6. The applicant submitted the following evidence to the Tribunal and the Department in support of the application:

7. Evidence to the Department:

   • Applicants’ passport information;
   • COE Diploma of Marketing 15/06/2015-16/12/2015;
   • COE Advanced Diploma of Marketing 04/01/2016-05/07/2016;
   • Marriage Certificate dated 05/12/2008;
   • Certificate, results and evidence of completion of a Certificate III in Food Processing (retail Baking- Bread) dated 2011 and 2012;
   • Transcript of competencies for an Advanced Diploma of Business Management dated 11/12/2009;
   • Letter from The Illawarra Business Collage regarding Certificate IV in Business Administration dated 11/12/2009;
   • Evidence of applicant’s secondary school results from 1999, 2001 and 2006.

8. Evidence to the Tribunal (differently constituted):

   • Applicants’ passport information;
   • Government of India report on the state of Indian agriculture 2015-16;
   • Data regarding location of major produce markets in the applicant’s home state;
   • Article from Epoch Times newspaper regarding marketing of agricultural products in India dated 23/4/2013;
   • Applicant’s written rebuttal and response to the Department’ decision dated 25/10/2016;
   • Extract from ASCO code 1231-11 Sales and Marketing Manager;
   • Course descriptions for Diploma of Marketing;
   • Applicant’s written statement regarding Indian farming and value of marketing qualifications dated 1/11/2016.

9. Evidence to the Tribunal (current):

   • Evidence of applicant’s previous studies in Australia including transcripts, letters and certificates of completion;
   • Evidence of the applicant’s secondary school results from 1999, 2001 and 2006;
   • Letter of offer, English requirement and fee receipt from Gateway Business College, 2019;
   • PTE English Report overall score 52 dated 23/09/2019;
   • Applicants’ overseas student health cover from 24/9/2019 -11/11/2022;
   • COE for Bachelor of Business (Accounting). 16/9/2019 -11/09/2022;
   • Letters from Saraswati Sugar Mills Ltd dated 19/9/2019 and Radaur Cane Growers co-op dated 18/9/2019 regarding payment;
   • Financial evidence of the applicants and sponsors in India including bank statements, evidence of transfers and tax returns;

   ·   ID cards for applicants’ relatives in India;

   • Employment letter from Office of the district & sessions Judge Yamuna Nagar dated 21/12/18;
   • Indian property and farming related documents;
   • Affidavits and identity documents from Virendra Singh and Mangal Singh and family;
   • Representative Turner Coulson Immigration Lawyer submission dated 1/10/2019;
   • Applicant’s explanation of gaps in study dated 1/10/2019;
   • Applicants’ statements dated 14/10/2019 and letter of support (secondary applicant);
   • Letter from Gateway Business College regarding enrolment in Bachelor of Business (Accounting) dated 11/10/2019;
   • Applicant’s Statement to Tribunal regarding course cancellation and completion dated 11/10/2019;
   • Letter regarding request to the New South Wales Police for access to information under the Government Information (Public Access) Act 2009 NSW dated 16/1/2017 (referred to as ‘stolen passport police report’);
   • Psychologist’s letter dated [in October 2019];
   • ANZ Banking Statements;
   • Applicant’s statement of circumstances dated 16/10/2019;
   • ANZ statement of transaction from the applicant’s father Mangal Singh ($20,468) dated 24/11/2019;
   • ANZ statement of transaction from the applicant’s brother Virender Singh ($28,659) dated 24/11/2019;
   • Statement from Richa regarding financial support ($4,000) dated 11/11/2019;
   • Statement from Anuradha Gharu regarding financial support ($1,750) dated 7/11/2019;
   • Statement from Priya Rani regarding financial support ($4,700) dated 6/11/2019;
   • Statement from Pankaj Sood regarding financial support ($5,000) dated 5/11/2019;
   • Statement from Shiju Mathew (owner of AICA international) regarding financial support ($10,000) dated 6/9/2019;
   • Applicant’s statement regarding financial information dated 9/11/2019.

   Representative’s submission dated 1/10/2019

10. The representative’s submission sets out the background to the application and states the applicant meets the requirements for the grant of a Student visa. This is said to be because he has a current certificate of enrolment in a Bachelor of Business and is a genuine applicant for entry and stay. It is claimed the applicant intends to reside in Australia temporarily having regard to his circumstances (the applicant’s statement of purpose is duplicated here), his immigration history and because he meets all other requirements such as English language proficiency, educational qualifications, stated intention to comply with conditions, evidence of sufficient funds, evidence of health insurance, compliance with public interest criteria and holds a valid passport.

11. The applicants appeared before the Tribunal on 1 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary applicant Ms Kusum Lata. 

12. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

    The hearing

    Section 376 certificate:

13. The Tribunal dealt first with the matter of a s.376 certificate issued by the Department. The Tribunal explained to the applicant that the certificate was issued in relation to adverse information relevant to the review. It was also explained the certificate provides the Tribunal a discretion to disclose the information to the applicant but is subject to the Privacy Act. The Tribunal gave the applicant a copy of the certificate and invited submissions regarding the validity of the document. The applicant asked for time after the hearing to provide a written response. The Tribunal then advised the applicant that the information received was that he had provided false information in relation to his application for a Student visa in that he and his wife are working full-time as Uber drivers. The applicant stated he would be responding to the matter in a submission after the hearing. The Tribunal then advised the applicant that it may write to him after the hearing and request further information if it is considered necessary.

14. The applicant confirmed he first came to Australia in 2007 to study business. He said the idea was to gain more skill that field. Before coming to Australia, the applicant said he completed secondary school. The applicant first studied a Certificate IV, Diploma and Advanced Diploma of Business Management which he completed in 2009. The applicant returned to India in 2010 but advised he still held a Student visa. He said he was from a farming background and decided to learn skills in baking to be able to develop a business in India. As a result, the applicant enrolled in and studied a Certificate III in bakery.

15. According to the applicant the college where he enrolled closed and it was difficult to find another course in Perth where he was living. He enrolled in TAFE in a course called ‘retail baking combined’ where he was able to complete his baking subjects. However, the applicant said he had to enrol elsewhere to complete the course as the TAFE course was combined with patisserie. He then completed his Certificate III in Melbourne in 2012.

16. The applicant said in 2012 he was working at Baker’s Delight where there was a shortage of bakers and he was pressured to work “for a long time”. The applicant said his Certificate III course was finished and he worked for the employer for 7 or 8 months. The applicant was offered sponsorship to be able to work there longer. When asked what happened about the sponsorship, the applicant said he was working part-time but was expected to work longer without further pay. He also said he was not learning new skills and as a result he advised his agent he was withdrawing as he wanted to learn commercial cookery. The applicant said he thinks he was still holding a Student visa at the time.

17. The applicant said the agent told him he could apply for a Subclass 485 visa. However, he said the paperwork could not be submitted on time and the visa was refused. The applicant then sought a review of the decision before the Tribunal. He said he was able to work and study while on a Bridging visa and he studied another Certificate III course to expand his knowledge of cookery. He said it was then suggested by an agent that he apply for a Subclass 457 visa because of his background which was sponsored by a restaurant. In late 2013 the applicant said his agent asked if he wanted a 457 or 485 because he could only be granted one and he accepted the Subclass 485 because he only wanted to stay for 18 months from November 2013. During the time he held the visa the applicant said he took a trip to India for about three months.

18. The applicant advised he was always concerned with learning more about business and he did not want to start his own without experience. When asked what work he did while holding a Subclass 485 visa the applicant said he drove a cab. He said it gave him a lot of time to himself. The applicant was asked why he did not work in the area in which he wanted a business. He said it was because he already had experience working in a bakery. The Tribunal reminded the applicant he had said he was not given a broad range of work in the bakery. The applicant said it was good experience, but he did not learn about starting and running a business. The applicant said he realised marketing is a very big part of business and wanted to have that skill. In 2015 the applicant said he decided to apply for another Student visa.

19. At the time of applying for the visa the applicant was enrolled in a Diploma of Marketing. When asked if he completed the course, he said he informed the college his visa was refused and was then unable to continue. The applicant said he was enrolled to study in Perth but could not remember the name of the provider. He said he attended for two or three weeks before receiving the Department’s decision.

    Section 359AA invitation to comment or respond

20. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, it appeared his Diploma of Marketing was cancelled for a reason other than as provided by the applicant. The Tribunal discussed the Provider Registration and International Student Management System (PRISMS) with the applicant and explained it was a record of his enrolment in courses of study. He was given a copy of the record and was advised that the Diploma of Marketing was cancelled for non-commencement of studies whereas, he said he did begin the course and attend for a few weeks. The Tribunal commented that if a course has been started, it is often the case that education providers will allow a student to continue while they seek a review of a decision to refuse a Student visa. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and advised that he may seek additional time in which case, the Tribunal may adjourn the hearing or allow time after the hearing to provide a response. The applicant indicated he would like to respond to the information after the hearing and the Tribunal agreed to the request.

21. The Tribunal asked the applicant about his having enrolled in a Bachelor of Business (Professional Accounting) and why he has decided to change his field of study. He said in 2016 he had the opportunity to manage the businesses of two different multi-national companies; those being Puma Energy and Caltex Petroleum. When asked what he meant by “having an opportunity to manage businesses” the applicant said he was offered a position managing work sites for those companies which he did. However, according to the applicant after being unsuccessful in seeking a review before the Tribunal previously in late 2016 he held a Bridging Visa E and was not permitted to work.

22. The applicant claimed at that time he realised it would be better to study an accounting degree because of the changing situation in India. The Tribunal reminded the applicant he has declared he wants to have a bakery business. The applicant said he has since realised it would be difficult to grow that type of business and in order to make it bigger, he needs to have a better understanding of business and accounting. The Tribunal asked if the applicant was still planning a bakery. After some thought the applicant said his father is a partner in an agri-business that has not been doing well as it is not professionally run. However, the applicant claimed it has potential but is hampered by being run traditionally. He said he wants to learn “that skill” from a Bachelor of Accounting. The Tribunal reminded the applicant a Bachelor of Accounting is quite specific and is usually taken by people who want to be accountants. The applicant said his is a Bachelor of Business and he will learn about accounting, business and marketing.

23. The Tribunal asked the applicant to explain whether he is still planning a bakery in future. He said no, he was more focussed on an agricultural business. He was asked what the nature of his father’s work is, and the applicant said they have a farm and an agri-business selling wheat and rice. He was asked about what his role would be. The applicant explained that farmers sell their grain which involves other companies and the government; and he sees accounting, business and marketing skills being useful in managing the process. The applicant claimed his earlier course in business will be of value and he will still have the bakery qualifications if he wanted to use them, however, he said his focus is on acquiring business skills.

24. The applicant advised he has no family in Australia apart from his wife. In India he has parents, two brothers and their families. The applicant was asked why he had only just enrolled in a bachelor’s degree, shortly before the hearing. The applicant said he was motivated to do so when he was the regional manager for Caltex. He said after the last Tribunal hearing he was able to get a Bridging visa A allowing him to study but because of a delay in applying to the Federal Circuit Court, he was given a Bridging visa E that does not allow him to work or study. The applicant said he was granted the BVE in early 2017 and he still has it. When asked how he supports himself the applicant said through friends. He confirmed his wife was not able to work either but said in April 2019 he was granted work rights. The applicant said he was told he could only enrol to study a short course. The applicant said he is now working for Uber.

25. The applicant was asked when he last returned to India and he said when he was granted a Subclass 485 visa in either 2013 or 2014. Regarding an incentive to return to India, the applicant said he has a great desire to return but would like to go back with a skill. The Tribunal reminded the applicant he has enrolled to study for a further three years. He said he sought credit for past studies, but it was denied, and he will need to take the whole course.  The Tribunal put to the applicant it was a long time to be a student and to only just be starting a degree course. The applicant said he had sought to finish it sooner but was unable to get recognition for prior learning.  The applicant said there are no civil or political issues preventing his return to India.

26. The applicant was asked whether he has started the bachelor’s degree. He outlined how his (education) agent had stopped responding to him and he only had the offer letter at the time. However, he said he is planning to start immediately and has informed the college about it. The Tribunal asked the applicant about the units of study he will be taking and replied “accounting, marketing and business management”. When asked for names of the units he will take in the first semester he said he will do four but could not name them, even though he said he will be going “tomorrow”. According to the applicant he will be told at the introduction. The applicant said he has spent a lot of time to build up his skills in a practical and advanced way to be a businessman in India. He said during his 12 years in Australia he has come to the point where his current course will be his final study. The applicant was asked if his wife is working or studying and he said no. When asked about him now having work rights, the applicant said that is correct but reiterated his wife is not working.

    Evidence of the witness – Ms Kusum Lata

1. Ms Lata said she and the applicant were married in 2008 and she came to Australia in 2014. The Tribunal asked if she had studied or worked in Australia and Ms Lata replied, “not really”. When asked to explain the witness said, “I did not do any study or work in Australia”. She said the primary applicant has supported her by driving for Uber. When asked what other kind of work the applicant has done, she said he worked for Caltex and Puma. Ms Lata was asked how long the applicant has driven for Uber and she said for a few months most recently but also about two and a half years ago. The Tribunal asked the witness how they had supported themselves when they held a BVE and she said through friends and family. Ms Lata advised she and applicant share accommodation. Regarding their plans for the future, Ms Lata said the applicant intends to work for his father’s business. Ms Lata was invited to make any further submissions in support of the application for review, but she had nothing further.

2. The representative indicated they would respond to the Department’s s.376 notice after the hearing. The Tribunal informed the applicant’s representative that they may also submit any further evidence that the parties wish to be considered.

   Post hearing submissions

3. After the hearing, on 2 October 2019 the Tribunal wrote to the applicant and invited him to provide the following information:

   ·     Bank statements for all accounts held by you in Australia for the period 30 June 2017 to the present. Please include the bank account where you receive your current income from Uber;

   ·     Details of all employment that you have undertaken in Australia (name of employer, position held and the length of time employed). 

4. The applicant submitted this evidence on 16 October 2019. 

5. On 29 October 2019 the applicant was asked to provide further information regarding the bank statements he had submitted as follows:

   Regarding the bank statements you provided on 16 October 2019, you are invited to provide the following information in writing:

   ·     Confirmation that the accounts ANZ Rewards - 4072 20xx xxxx 4995; ANZ Progress Saver – [number]; ANZ Online Saver – [number]; and ANZ Access Advantage – [number] are held in your name.

   ·     The source of credit amounts into the ANZ Rewards account - 4072 20xx xxxx 4995 between 13/12/2018 and 08/10/2019 totalling $27,980 that all have the reference “PAYMENT THANKYOU”;

   ·     The reason for the payment into the ANZ Online Saver Account - [number] of $27,405 on 28/05/2018 from Echelon Australia Pty Ltd;

   ·     The source of the payments into the ANZ Online Saver Account - [number] from the payer “TAXIFY”;

   ·     The source of payments into the ANZ Access Advantage – [number] of $20,468 and $28,659 on 28/08/2019.

   ·     Please advise whether you have a home loan account with ANZ Bank. If so, provide a current statement from the account.

6. The applicant provided additional statements and submissions in response to the Tribunal’s request for information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

9. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)     …

10. 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.

11. 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.

12. The Tribunal considered the applicant’s circumstances in his home country. The applicant advised that prior to coming to Australia he had completed secondary school. He submitted evidence of his schooling and results to the Department at the time of application. The applicant advised the Tribunal he has parents and two brothers living in India along with their extended families. The applicants were married in India in 2008 and Ms Lata joined the applicant in Australia from India in 2014. The applicant claims he intends to work for his father’s agri-business in future. Evidence was submitted that indicates the applicant’s family gain their income through farming and the sale of produce in India. The Tribunal is satisfied the applicant’s father is employed in the agricultural sector and that the presence of his family indicate he has ongoing personal ties to India. There is no evidence before the Tribunal that the applicant has any military service commitments that would present as a significant incentive for him not to return to their home country or that there is any political or civil unrest affecting him. Based on the evidence overall, the Tribunal is not satisfied the applicant’s family ties would serve as a significant incentive for him to return to his home country.

13. The Tribunal assessed the economic circumstances of the applicants that would present as a significant incentive for them not to return to their home country including circumstances relative to their home country and to Australia. The applicant has ongoing employment in Australia, continued financial backing from family in India and a network of support in Australia including his wife and friends who are prepared to assist him financially. The applicant has not returned to India since 2014 and has not provided evidence of the remuneration he could expect to receive in his home country compared with Australia, using the qualifications to be gained from the proposed course of study

14. The applicants’ circumstances in Australia are that they have spent many years as temporary residents (12 years in the case of the primary applicant and five in the secondary applicant’s case) and have been engaged in a variety of employment related activities outside of the applicant’s study. The primary applicant has not progressed academically as would be expected of a person whose focus in Australia should be their education. Since his arrival the applicant has completed five courses of study at the Certificate and Diploma level. Although the applicant provided an explanation as to why his Certificate III in Retail Baking took longer than expected, it does not account for the applicant’s minimal achievement overall.

15. Based on the applicant’s bank statements and explanation of his finances over the last two years, the applicants have regular income and financial support in Australia. The applicant stated at the hearing that he has been working most recently as an Uber driver while he has declared that in the past he worked in a bakery, drove a cab and managed two sites for Puma Energy and Caltex Petroleum. The secondary applicant stated in a written submission after the hearing that she also worked for Caltex and in a beauty salon (iBrow Station). The Tribunal finds the applicants have developed ties with Australia which would present as a strong incentive to remain in Australia.

16. Regarding the value of the course to the applicant’s future, the Tribunal notes the applicant provided a range of statements to the Department and to the Tribunal extensively outlining his plans once he returns to India. In October 2016 the applicant provided a written rebuttal to the Department’s reasons for decision in which he referred to food wastage in Australia and India and farmers’ suicide rates for financial reasons. He stated at the time “It is my intention to get educated to stop wastage food wastage and get the farmers a better price of their production…”. [errors in the original]. The applicant had studied food related courses and had been planning a bakery and food business in his hometown in India.  However, when he was applying for a new Student visa the applicant had planned to study Marketing which he claimed was vital to business. In his detailed written statement to the Tribunal (differently constituted) dated 1 November 2016 the applicant provided extensive detail about agricultural and farming matters in India. The Tribunal notes that part of what the applicant submitted appears to have been copied directly from a World Bank feature story entitled ‘India: Issues and Priorities for Agriculture’ dated 17 May 2012. He claimed the Diploma and Advanced Diploma of Marketing that he was intending to study at the time would be of significant value in his home country. He stated: My role will reflect in many areas like to analyse the problems and potential in irrigation, bio and organic techniques of doing agriculture. To design a market for smallhold farmers to sell their products straight to consumer to cut the big role of middle man traders, to get more benefit straight to small farmers…

17. The applicant did not ultimately pursue marketing and at the time of the Tribunal hearing on 2 October 2019 he had enrolled in a Bachelor of Business (Professional Accounting) at Gateway College. His oral evidence was that he is planning to work for his father’s agri-business that requires skills in accounting, business and marketing. In a ‘Statement of Purpose’ dated 30 September 2019 the applicant gave a detailed account of his background and his visa and study history in India and Australia. He states he first planned to learn baking in order to “use various agri produce to offer quality bakery products to common people there…” He then chose to include commercial cookery as a further skill. The applicant describes living in Perth, seeing the economic downturn and deciding against a food business. He claims he opted to study Marketing: “I research and… found that marketing is a very big back bone of any industry, which helps survive industries for a longer time or even in recession.” For reasons not explained the applicant did not continue studying Marketing or re-enrol in that field after his visa was refused. In his statement he goes on to provide a comprehensive overview of the Bachelor of Business that he is now enrolled in. The Tribunal notes the information appears to have been taken largely from the website of Gateway Business College (‘course structure’ and ‘skills and outcomes’). The applicant describes the current and future state of trading in India including various government initiatives. He suggests he will be well place to understand changes in the farming industry. “Whiles as I will be updated with the latest business and accounting skill, which will provide me big opportunity to the big player of this business.” The applicant states his degree will also give him other options: “if I want to find a very high paid job then i will be able to work as a management accountant, accounts clerk, auditor, accounts receivable/payable officer, taxation advisor, financial accountant, corporate finance analyst, risk manager, credit officer, data analyst, forensic accountant etc”. The Tribunal notes that again this information is taken primarily from the Gateway College website that lists ‘Graduate Career Outcomes’.

18. Having assessed the written statements and the applicant’s evidence overall, the Tribunal finds that while the applicant has provided a lot of information, none of it clearly articulates how a Bachelor of Business (Professional Accounting) is to be applied to a farming/agricultural trading business such as the applicant’s father operates in India including what the applicant’s role will be or what level of remuneration he expects. Based on submissions to the Tribunal such as an Indian government report on Indian agriculture in 2015-16, the identification of major produce markets in the applicant’s home state and news reports about the Indian agricultural market the Tribunal considers the applicant has been attempting in his written evidence to display a detailed level of knowledge and concern about the agricultural industry in India while conversely seeking to extend his stay in Australia as long as possible. The Tribunal finds the applicant’s generalised statements such as the following from his November 2016 submission: “… I tried the best to highlight my vision to build my career with a true intension to start a effort to kill poverty and hunger from this world…” to be particularly disingenuous.

19. The Tribunal is not satisfied a Bachelor of Business (Professional Accounting) is consistent with the applicant’s previous studies or that it follows logically from qualifications in baking and cooking. The applicant initially studied business related courses at the Diploma level, up to an Advanced Diploma but then regressed to study Certificate III courses in baking and cooking. He has only returned to the field of business in 2019 when he enrolled in a Bachelor of Business. Having reviewed his numerous written statements and oral evidence, the Tribunal finds the applicant has tailored his account of his career plans to suit the course he is studying at any given time. This has included opening a bakery or food related business, working in marketing of agricultural products and employment generally with his father’s agricultural business. At the same time, very little of his work history is relevant or applicable to working in the farming or agri-business sector.

20. The applicant’s immigration history includes both visa and study history. It indicates the applicant arrived in Australia on 26 September 2007 as the holder of a Subclass 573 student visa. He has returned to his home country four times; in 2008, 2010/11; 2013 and 2013/14. As of the date of the hearing the applicant has been a temporary resident in Australia for 12 years. He is planning to remain in Australia at least until 11 September 2022 which would take his temporary residency to nearly 15 years. Since his arrival the applicant has held two 573 visas, a Subclass 572 and a Subclass 485 post study work visa. While in Australia the applicant has also applied for a Subclass 186 employer nominated visa and a Subclass 457 temporary work visa. The Tribunal finds the applicant’s length of time in Australia and his applications for other Australian temporary and permanent visas weigh against him in assessing whether the applicants are genuine temporary entrants for study.

21. There is no evidence before the Tribunal to indicate the applicant has travelled to countries other than Australia and whether he complied with the immigration laws of that country. The Tribunal has relied only on the applicant’s immigration history in Australia in making this decision.

22. At the time of the hearing the applicant had completed a Certificate IV in Business Administration; Diploma and Advanced Diploma of Business Development, a Certificate III in Food Processing (Retail Baking) and a Certificate IV in Commercial Cookery. During the hearing the Tribunal had put the PRISMS record to him in accordance with s.359AA of the Act. In particular, the applicant was asked why the record showed his Diploma of Marketing was cancelled for ‘non commencement of studies’ when he claimed to have taken the commenced the course and attended for a few weeks. The applicant did not directly address that issue. Instead he submitted the PRISMS record contained a page duplication which the Tribunal acknowledges as correct. The applicant also claimed there were courses listed on the record that he had not enrolled in although he did not specify which courses he was referring to. Nevertheless, the Tribunal does not make any adverse finding regarding the PRISMS record as it is dependent upon the accuracy of the information given by education providers and can contain inaccuracies.

23. The applicant is currently enrolled in a Bachelor of Business (Professional Accounting) that is due to be completed on 11 September 2022. Prior to then the applicant had only completed courses at the vocational level despite having completed the related course of Advanced Diploma of Business in 2009. Considering the amount of time the applicant has spent in Australia undertaking relatively short, inexpensive courses of study, the Tribunal finds the Student visa is being used primarily for maintaining ongoing residence. The Tribunal considered the representative’s submission dated 1 October 2019 that claims the applicant meets the criteria for the grant of a Student against the evidence in support but is not satisfied the applicant is a genuine temporary entrant for study.

    Other relevant matters

24. At the hearing on 1 October 2019 the Tribunal put to the applicant details of an allegation received by the Department that he was not a genuine student as he and his wife were working full-time. The applicant was invited to comment on the validity of the Department’s s.376 certificate and the adverse information it related to. He requested time after the hearing to respond which the Tribunal agreed to. The applicant did not subsequently provide a response, but he did concede he had worked in breach of visa conditions. The Tribunal has not relied on the allegations received by Department and has instead weighed the evidence provided by the applicants themselves in deciding whether the genuine temporary entrant criteria has been met.

25. After the Tribunal hearing the applicant was invited to provide copies of his bank statements which he did. He was asked whether he had a home loan account and the applicant said he did not which the Tribunal accepts. He was then asked to account for some of the credits in his ANZ accounts and he provided a written response in this regard. The applicant was asked in particular to explain credits in his account totalling $27,980 with a reference ‘Payment Thank you’. He said the funds were from various sources and set out the payments received from his father and brother; from Uber; an insurance claim; Echelon Australia Pty Ltd and from various friends. However, the Tribunal notes those payments are separate to the ‘Payment Thank you’ credits the applicant received periodically that in total were approximately $27,980. For this reason, the Tribunal is not satisfied the applicant has been completely honest about his sources of income in Australia.

26. In the applicant’s statement of purpose dated 16 October 2019 he outlines having worked for Uber when he did not have work rights in Australia. The applicant claims that because it is “only online American company…”, he believed it was not considered working in Australia. He says later he found out it may in fact be classed as work in Australia. The Tribunal does not accept the applicant thought driving for Uber would not count as work. By his own evidence he began as an Uber driver in 2016, he supported himself and his wife in this manner and his bank statements indicate he received regular payments for the work undertaken.

1. The applicant provided a psychologist’s letter dated [in] October 2019 that states the applicant has “…engaged with the author for psychological assessment and therapy from [April] 2018 till presently. He has attended over [number] sessions since”. The letter says [details deleted]. The letter does not refer to the nature of the applicant’s psychological assessment or therapy or provide any information about the applicant’s mental health, as would be expected. It is not clear why this information was conveyed via a psychologist’s letter.

2. The applicant has conceded he worked in Australia when he did not have the right to. The Tribunal therefore places limited weight on the representative’s submission that the applicant has stated an intention to comply with visa conditions since he has failed to do so in the past. The Tribunal notes the secondary applicant also provided false information about her employment status.  At the hearing the secondary applicant clearly stated she had not worked or studied in Australia. However, after the hearing her written statement included details of the employers she has worked for in Australia:

   ·     2016 Caltex Salt Ash, position - CSA, for about 8 months, owner - Satwinder Singh & Rana Rlzwan

   ·     2016 l-Brow station, Charlestown NSW, for about 6 months, owner - Sheetal Hooda…

3. It appears the secondary applicant was trying to minimise her own employment ties to Australia by claiming the applicant had always supported her financially. The secondary applicant stated at the hearing that the applicant had been driving for Uber for the last three or four months. When asked when he drove for them before that, she replied that it was two and half or three years ago. Contrary to this, the applicant declares in his statement of circumstances dated 16 October 2019 that he had worked for Uber from August 2016 to January 2019 and from April 2019 up to the date of the hearing. The Tribunal finds that the applicants have not been truthful about their circumstances in Australia and this affects their credibility overall.

4. The Tribunal has considered the evidence individually and cumulatively including the applicants’ evidence at the hearing and all written submissions provided to the Department, to the Tribunal at the first hearing and to the Tribunal after remittal from the Federal Circuit Court. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant.

5. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

6. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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.

   Member of Family Unit – Secondary visa applicant

7. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

8. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicant is unable to meet the criteria because they are not a member of the family unit of a person who satisfies the primary criteria in cl.572.223.

   DECISION

9. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

   Wendy Banfield
   Member