Manpreet Singh (Migration)

[2016] AATA 4984

Manpreet Singh (Migration) [2016] AATA 4984 (6 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manpreet Singh
Mrs Ramandip Kaur
Master Anoop Singh Dhillon

CASE NUMBER:  1505194

DIBP REFERENCE(S):  BCC2015/644732

MEMBER:Alison Mercer

DATE:6 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 06 September 2016 at 2:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – genuine temporary entrant – unrelated subject choices – lack of course progress – limited home visits to India – seeking to maintain ongoing residence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499

Migration Regulations 1994 (Cth), Schedule 1 Item 1222, Schedule 2 cl 572.223

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 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. Where used in this decision:

   ·COE refers to Certificate of Enrolment in a course of study;

   ·PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   ·VET refers to Vocational Education and Training;

   ·A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·The Department refers to the Department of Immigration and Border Protection;

   ·Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·IELTS refers to the International English Language Testing System.

3. The applicants applied to the Department of Immigration for the visas on 27 February 2015. The delegate decided to refuse to grant the visas on 7 April 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).

4. The delegate refused to grant the visas because he found that the first named applicant (the applicant) did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations.  The delegate considered that, having regard to the applicant’s circumstances, immigration history and other relevant matters (including the factors set out in Direction 53), the applicant did not genuinely intend to stay in Australia temporarily as a student.  The delegate noted that the applicant had undertaken various multiple, low level vocational sector courses in community welfare, business and management before enrolling in a package of commercial cookery/hospitality courses, which appeared unrelated to his previous studies.  The delegate also noted that the applicant had not provided any evidence for his claim that he had a friend in India who had offered to open a restaurant with him in India.  The delegate gave weight to the fact that the applicant had been in Australia since late 2007 with only limited return visits to India, and that his wife and son were with him in Australia, undermining his incentive to return to India.

5. The delegate refused the applications of the second and third named applicants (the applicant’s wife and son) as they did not meet the secondary criteria to be members of the family unit of a person who met the criteria for a Class TU visa and there was no evidence to indicate that they met the primary visa criteria for any of the subclasses within Class TU themselves.

6. The Tribunal received a review application from the applicants on 16 April 2015.  It was accompanied by a copy of the delegate’s decision.

7. On 28 June 2016, the Tribunal wrote to the applicants inviting them to a hearing on 22 July 2016. They were requested to provide evidence of the applicant’s current CoE (or offer of enrolment), evidence of his previous studies in Australia (including an explanation of any study gaps) and a statement addressing the issues raised in Direction 53 in respect of whether he was a genuine temporary entrant for study in Australia.  A copy of Direction 53 was enclosed for reference.  The Tribunal asked for the above information to be provided at least 7 days before the hearing.

8. On 13 July 2016, the Tribunal received via email a statement and supporting documents from the applicants. 

9. In his statement, the applicant indicated that:

   …

   I am born and brought up in a small village known as Pipal Majra, Chamkaur Sahib, Distt Ropar.  I completed my year 12 from PSEB India.  I was granted my first student visa in October 2007 and arrived in Australia in November 2007.

   First of all I want to strongly suggest/plead that I am a genuine student and want to complete my qualification.  I have always completed my qualification whatever I have started.  I do agree that I have changed my career course of studies for couple of times before, but it was destined.  But since the last two years I have chosen the field which gives me satisfaction, the study in which I have full interest and can see my future in it.

   I was granted my initial visa to study Diploma of Community Welfare Work which I completed in year 2009.  Then I went back to India to meet my parents as I was missing them in November 2009.  When I came back I started with studies of Cert IV in Business and Diploma of Business.  After that I applied for 485 visa to gain some work experience but could not get work in the required field.  After getting fed up for work, I started working in a restaurant.  In the starting I did not like it but after a couple of months, I really started enjoying the work.  After few months the restaurant got closed but it gave me a real thought about my future.  I applied at few more restaurants but got rejected as I did not have formal qualification for a cook or chef.  It was the time when I thought of a change of career and had counselling with my family, friends and professional cooks for a change of career. Then I started with Advanced Diploma of Management along with Certificate III and Certificate IV in Commercial Cookery.  Now I have completed my Certificate III and IV in Commercial Cookery, I am going to start with my Diploma and Advanced Diploma of Hospitality so I can be a master in this field.  I have attached my completed qualification along with my future CoEs for Diploma and Advanced Diploma in Hospitality.

   As mentioned earlier, behind choosing this career and course in commercial cookery and Hospitality is that I have a dream to own and run a successful Fine Dining Restaurant business in India and I want to up-skills in both core trade as well as small business management, marketing, accounting and financial management.

   My short term goal is to become chef of international level and long term ambition is to set up my own multi-cuisine chain restaurant in India with a dream to expand it to a national level with specialised skills.  After completion of my Advanced Diploma in Hospitality I will gain some experience in this field while working at good restaurants and hotels and then will apply the same experience to my own business.  I already mentioned in my reply to the department that one of my close friend lives in India and is running a very successful restaurant business.  I have attached letter in which he justifies that he is waiting for me to complete my qualification, so I can become partner with him back home.  I will be spending approximately $70,000 into the business and hope to recover the money in the next 1 to 2 years.  My parents would be sponsoring me the money for the business.  We will be growing the restaurant to a hotel level as we will be buying the space attached to the restaurant and is readily available as well.

   Currently the restaurant is hiring 1 chef and 3 main cooks. After completion of my studies I would like to join the team and want to provide international expertise that would help us to grow the business even more.  I have completed my business studies and already gained business running qualities.  After completion of my studies to Advance Level of Hospitality, I would be confident and experienced enough to handle a big business with international approach along with the international standards of food preparation.

   I have strong reasons and tie ups with my home country to go back to India.  My parents live in India.  I love my parents very much and cannot leave them.  My parents are well settled in India and have enough financials to lead a good life.  I have my brother and nephews living in India and are very well settled.  They have good business over there and are leading a close happy relation to my parents.  Almost all of my uncles and aunts live close to my home place. My grandparents are also living close to us and I have a very good bonding with them.  Our ancestral property and land is also situated in my village which I will inherit from my parents.  I have attached land papers with this mail which clearly shows my rather owns the property which is worth millions and I will inherit from my parents.

   Since I have been granted visa I have been thrice to India.  I have been going back to India to see my parents regularly after every two years.  First I went to India in November 2009 and came back in January 2010.  Then I went to India in April 2011 and came back in May 2011. Then I went to India in March 2013 and came back in May 2013. I go to India to meet my parents regularly and other family members every two years as it is not cheap to go to India every year.  I have to spend a lot of money to go home and visit my parents and it hinders my studies as well.  So it is not possible for me to visit each year but I am in regular touch with them over the phone, Tango and skype video calling. They are in good health and always recommend me to finish my studies and come back.

   I just want to state that whatever I have mentioned above is true and I request your majesty to please provide me a chance to finish my qualification as I have spent a lot of my life over here to gain international qualification and experience.  I have spent a lot of time of my life in gaining the required qualification and experience and request you to please let me finish my remaining studies.  I have enrolled in Diploma of Hospitality and Advanced Diploma of Hospitality and have attached CoEs with this letter.

   …

10. The attached documents included:

    ·Advanced Diploma of Management issued to the applicant on 27 March 2013 by ANGAD, transcript of results and letter of completion;

    ·CoEs for Diploma of Hospitality Management (11 July 2016 to 8 January 2017) and Advanced Diploma of Hospitality Management (9 January 2017 to 10 June 2017) at Pax Institute of Education Pty Ltd. The fees are $4,000 and $4,500 respectively, of which the applicant has not made any pre-payment;

    ·Diploma of Community Work issued to the applicant on 2 November 2009 by Stott’s Colleges, letter of completion, transcript of results, and statement verifying he undertook 2 practical work placements as part of this course;

    ·letter dated 5 July 2016 from Parveen Garg, who states that he has run Zaika restaurant (a multi-cuisine restaurant and bar) for the last 5 years with his brother.  One of his friends, the applicant, was studying hospitality in Australia. Mr Garg states that he offered the applicant partnership in his business once he completed his studies and returned to India.  Mr Garg states that he wants the applicant to finish required study for this;

    ·Certificate III in Commercial Cookery issued to the applicant by AVETA on 12 January 2016, statement of results and letter of completion;

    ·Diploma of Management, letter of completion and statement of results issued to the applicant in 2011 by St Peter Institute;

    ·Certificate IV in Business issued to the applicant on 20 August 2010 by St Peter Institute; and

    ·record of results for the applicant for Certificate IV in Commercial Cookery issued to him by AVETA on 8 July 2016.

11. The applicants appeared before the Tribunal on 22 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

12. The applicant confirmed the contents of his written statement.  He noted that he had now provided a letter from his friend in India with whom he planned to open a restaurant. He confirmed that he had now completed his Certificate IV in Commercial Cookery and had started the Diploma of Hospitality Management.  When asked why he could not undertake hospitality study in India, the applicant said that there were no age limits to study in Australia but in India, there was prejudice against older students and bullying occurred.  In addition, he maintained that Australian qualifications were better taught and better regarded than Indian ones. 

13. In response to the Tribunal’s query, the applicant said that he initially came to Australia to undertake a Bachelor of Business degree but never started this course. He had started a Bachelor degree in India at a minor university but did not complete this as he and his family decided it would be better for him to study in Australia. He said that his education agent in India misguided the applicant and his family that the Bachelor of Business and Diploma of Community Welfare were linked when this was not the case.  The applicant said that he came from a farming village and was naïve. The Tribunal noted that the applicant was 23 when he came to Australia, so was not straight out of school.  The applicant maintained that he was misled by the agent about what courses he should pursue in Australia. 

14. The applicant confirmed that after he completed his Diploma of Community Welfare, he then did a Certificate IV in Business and a Diploma of Management.  During this period, he also returned to India to get married.  However, his wife did not join him in Australia for about 2.5 years, until the applicant applied for, and was granted, a subclass 485 (Graduate Skilled) visa.  This was because his wife had a serious liver condition that took some time and considerable funds to cure.  The applicant said that he applied for the subclass 485 visa because he hoped to gain work experience in the field of Community Welfare and because he could not face further study at that time.  However, he found it difficult to find work experience due to the generalist nature of his qualification and his inexperience. He also realised that there was little work available in this field in India.  He reiterated that his education agent misled him in this regard. He also said that around this time, his friend in India (Parveen Garg), who had also done a Diploma of Community Welfare in Australia, told him this course was a waste of time. Mr Garg was now running a restaurant in India and he suggested the applicant should join him in this business.

15. In relation to the management courses he undertook, the applicant said that he felt that he needed management and business skills to run a restaurant.  He understood that he would be able to package these courses with a commercial cookery course but it turned out that this advice was incorrect as the rules had changed and that commercial cookery and management were now regarded as completely separate courses. This was why he enrolled in the package of the Certificates III and IV in Commercial Cookery followed by the Diploma of Hospitality Management. The applicant noted that there had been many changes by the Department to the courses and pathways that led to temporary and permanent residence. 

16. In response to the Tribunal’s query, the applicant said that he did enrol in a Bachelor of Business (Community Services Management) and a Bachelor of Business, but he did not pay the fees or actually study these courses.  He decided instead to apply for the subclass 485 (Graduate Skilled) visa.  His wife joined him as his dependent spouse, and then became pregnant.  Their son was born in Australia in 2014. 

17. The applicant said that his second trip back to India was in 2011 was because he had experienced some ill health and treatment was cheaper in India than in Australia.  His third trip back was in 2013, for his brother’s wedding and because his father was sick.

18. The applicant said that he is the older brother of 2, and his younger brother remained in India with his parents.  The family lived near Chandigarh in the Punjab. The applicant said that the restaurant he planned to run with Mr Garg was in a suburb of Chandigarh.  The applicant said that it offered Indian cuisine and also had a bar.  The applicant confirmed that he met Mr Garg while they were both studying the Diploma of Community Welfare in Australia. Mr Garg returned to India in 2010 and he established the restaurant when he found that there was little scope to find employment in India in the field of community welfare work.  The applicant by this time was working part time in Australia at a restaurant and had developed an interest in this field.  He talked to Mr Garg about going into partnership to take the Chandigarh restaurant to a higher level, to capitalise on the fact that in the Chandigarh region, there were developments with multinational companies and airport expansion.  The applicant said that Mr Garg came from a wealthy family and his brother had funded Mr Garg to start the restaurant.  Mr Garg had fully taken over it in 2011.  The applicant said that Mr Garg was interested in the applicant coming into the business to introduce to western cuisine (such as Italian, seafood) in order to target international visitors to the area.  In response to the Tribunal querying why the applicant needed to do more than the Certificate III and IV in Commercial Cookery to implement this plan, given the restaurant was already operating and being managed by Mr Garg since 2011.  The applicant responded that Mr Garg needed someone well-qualified to help him to expand the business, manage the staff and expand the range of dishes offered.

19. When asked how he could afford to buy a partnership interest in Mr Garg’s restaurant, the applicant said that he had access to the equivalent of about AUD $70,000 after the sale of some land owned by his family. The applicant said that to be a Chef, he did need to complete the Diploma and preferably, the Advanced Diploma of Hospitality, in order to up-skill himself and make the investment into the restaurant worthwhile. In response to the Tribunal observing that country information indicated that the Punjabi agricultural economy was shrinking, the applicant acknowledged that this was so but maintained that his family was OK. He noted that many families (like his own) had sold off some of their land to larger businesses, and some families had left the land altogether and relocated to cities.  Many people were now finding work in construction.  The applicant said that the cultural expectation that he, as the older son, would look after his parents in due course. Traditionally, a person’s parents (and sometimes also grandparents) paid for the person’s education, and then it was the responsibility of that person to look after his parents/grandparents. He said that this was a significant incentive for him to return to India.  He had good business prospects to return to there and could not afford to continue to live in Australia.  He said that he had spent a considerable amount of money over the 7.5 years he had lived in Australia.  He said that he could not afford to pay for his son’s education and/or a mortgage for a family home here. In response to the Tribunal’s query, the applicant said that his wife had been working part time in a food court in a shopping centre. 

1. In relation to having made only 3 return trips to India in over 7 years, the applicant said that school breaks were not long and he felt that it was better to make productive use of that time by not regularly visiting India.  He stated that he and his wife spoke with their parents every day and this remained a strong tie for both of them to India.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

4. 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)     …

5. 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.

6. 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.

   The applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to the applicant’s future

7. The Tribunal is satisfied that the applicant is from a village near Chandigarh in the Punjab in India, and that his immediate family consists of his grandparents, parents and brother and his brother’s family in India, and his wife and young son who are with him in Australia. The Tribunal accepts that the applicant also has several aunts and uncles in India and that his wife’s parents are also in India.  The Tribunal accepts the applicant’s evidence that his family own agricultural land there. 

8. While the Tribunal considers that the applicant has strong family ties to India, the Tribunal gives weight to the fact that the applicant has returned to India to see them only 3 times since coming to Australia in late 2007, and that these visits were relatively brief.  In the Tribunal’s view, this tends to undermine the applicant’s assertion that his family ties are a strong reason for him to return to India at the conclusion of his study in Australia. 

9. The Tribunal has concerns that the relatively less favourable economic situation in India, and in the Punjab in particular in recent years (see for instance has provided, and would continue to provide, an incentive for the applicant to attempt to maintain residence in Australia for an extended period in order to work.  However, the Tribunal gives some weight to the applicant’s evidence at hearing that his family were in relatively comfortable circumstances and that he had plans to buy into an established restaurant/bar business currently being operated by his friend Mr Parveen Garg, which has been successfully operating in Chandigarh for several years.  Accordingly, the Tribunal does not consider the economic situation in India in and of itself to be a significant disincentive for the applicant to return there.

10. While the applicant asserted that there were favourable economic opportunities to expand the restaurant/bar owned and operated by Mr Garg, the Tribunal retains concerns about the applicant’s reasons for remaining in Australia as long as he has.  It considers the fact that he has been fairly consistently employed in part time work since coming to Australia (as has his wife after the birth of their son), yet only relatively recently decided to pursue a package of hospitality courses, suggests that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.  

11. The Tribunal has concerns about the value of the proposed Diploma and Advance Diploma of Hospitality courses to the applicant’s future.  The applicant maintained that, despite having Business and Management qualifications, and having now completed a Certificate III and IV in Commercial Cookery and having been employed for some years in the food and hospitality industry in Australia, it would enhance his career prospects if he completed an Diploma and Advanced Diploma of Hospitality.  However, the Tribunal considers that he was not able to give a credible explanation for why he could not now return to India with the skills and qualifications he currently has to go into business with his friend Mr Garg, whose restaurant/bar is already established.  The Tribunal notes the applicant’s explanation that Mr Garg and he both want him to complete Australian hospitality qualifications before doing so, but does not find this reasoning to be plausible. There appears nothing to prevent the applicant from undertaking similar qualifications in India while working in the business with Mr Garg, particularly noting that Mr Garg himself was not stated to have formal qualifications in hospitality before successfully managing the restaurant himself. While it was stated that Australian hospitality qualifications would be better regarded than Indian ones, the Tribunal gives weight to the fact that the applicant did not enrol in any until early 2016, despite his evidence that Mr Garg had advised him some years ago that his Community Welfare qualification was unlikely to be a good career path in India, and had offered him a role in the restaurant/bar.  The Tribunal does not find this delay in undertaking hospitality studies consistent with his stated aim to go into the hospitality industry with Mr Garg.

12. Having considered the applicant’s evidence on this issue, the Tribunal is not satisfied that the courses that he now proposes to undertake would be of any significant, realistic benefit to him in India.  It further considers that his study history to date indicates a pattern of enrolment in a series of relatively short, inexpensive courses which were lower in level than the Bachelor degree he was originally granted a visa to undertake.  While the applicant did enrol in a Bachelor of Business (Community Services Management) and subsequently a Bachelor of Business in Australia, he gave evidence that he did not actually undertake any studies in connection with either of these enrolments. The Tribunal accepts that many students may legitimately change their field of study as they work out what career path they truly wish to pursue, but considers this is typical of young students going straight from secondary school into tertiary education.  In this case, the applicant is a 31 year old man.  At the relevant time he began undertaking study in Australia, he was 23 and had completed part of a Bachelor degree in India.  While the Tribunal accepts that the applicant may have genuinely decided that pursuing a career in Community Welfare Work was not the right choice for him, this is hard to reconcile with his subsequent decisions to study Business and Management courses at Diploma and Certificate level, particularly given his stated aim was by then to pursue a career in the food and hospitality industry.

13. This strengthens the Tribunal’s view that the applicant is utilising the student visa program to remain in Australia indefinitely, in contravention of the purpose of the student visa program.

    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

14. The Tribunal does not have any information in relation to the applicant’s visa applications to other countries (if any).

15. In relation to his Australian immigration history, the Tribunal finds that the applicant arrived in Australia in November 2007 as the holder of a subclass 573 (Higher Education Sector) student visa. The Tribunal finds that although this visa was granted to him to undertake a Bachelor of Business degree, he did not do so but instead changed his enrolment to a lower level course, the Diploma of Community Welfare Work.

16. Based on the evidence before it, the Tribunal finds that since 2007, the applicant has been enrolled in the following courses:

    ·a Bachelor of Business (Community Services Management);

    ·a Diploma of Community Welfare Work;

    ·Certificate IV in Business;

    ·Diploma of Business;

    ·Diploma of Management;

    ·Advanced Diploma of Management;

    ·Certificate III in Commercial Cookery;

    ·Certificate IV in Commercial Cookery;

    ·Diploma of Hospitality Management; and

    ·Advanced Diploma of Hospitality Management.

17. Of these, the Tribunal is satisfied that the applicant has completed the following over an almost 9 year period:

    ·Diploma of Community Welfare Work;

    ·Certificate IV in Business;

    ·Diploma of Management;

    ·Advanced Diploma of Management;

    ·Certificate III in Commercial Cookery; and

    ·Certificate IV in Commercial Cookery.

18. The Tribunal accepts that from approximately late 2011 to December 2013, the applicant did not study as he had applied for a subclass 485 (Skilled Graduate) visa, which was ultimately granted to him on 31 May 2012, and that during this period, he worked mostly in the hospitality industry (although he did initially seek employment in the field of Community Welfare without success).

19. Based on the applicant’s evidence and the Department’s movement records (as set out in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant), the Tribunal is satisfied that the applicant has returned to India 3 times since 2007 for short visits.  The fact that the applicant has largely resided in Australia since late 2007, with his wife since 2012, and their son since 2014, causes the Tribunal concern about whether he genuinely intends to return to India at the completion of his current courses (noting that he will have been in Australia for close to 10 years by the anticipated completion date of his Advanced Diploma of Hospitality).

20. The Tribunal finds that the applicant has undertaken a series of low level, short, inexpensive courses for approximately 7 years (excluding the period during which he applied for, was granted and held a subclass 485 visa).  The applicant is now seeking a further student visa to continue to study further Diploma/Advanced Diploma courses, having completed 3 Diploma or Advanced Diploma courses and 3 Certificate courses to date.  The Tribunal considers that the length of time spent in Australia by the applicant studying a series of various inexpensive short courses, interspersed with a period working while holding a subclass 485 visa, is indicative of the applicant seeking to maintain ongoing residence.

    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

21. The Tribunal has considered the totality of the applicant’s circumstances and considers that he has vocational qualifications in Business, Management, Commercial Cookery and Community Welfare Work, and some years of employment in the hospitality industry in Australia.  In view of this, it does not accept his explanation for his proposed further study in Australia as plausible or credible in relation to his future career prospects as it considers that the combination of qualifications he has already undertaken, together with his employment experience, would clearly fit him to pursue his stated goal without the necessity for undertaking a Diploma or Advanced Diploma of Hospitality Management in Australia.

22. 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).

23. 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.

24. The Tribunal also affirms the decision not to grant the second and third named applicants (the applicant’s wife and son) Class TU subclass 572 visas as they cannot satisfy the secondary visa criteria to be members of the family unit of a person who meets the primary visa criteria, and there is no evidence that they meet the primary visa criteria for this subclass, or any other subclass of visa within Class TU, in their own right.

    DECISION

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

    Alison Mercer
    Member