Patel (Migration)

[2023] AATA 4612

Patel (Migration) [2023] AATA 4612 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raj Dineshkumar Patel

REPRESENTATIVE:  Mr Abhi Manjibhai Mangukiya (MARN: 2117675)

CASE NUMBER:  2209760

HOME AFFAIRS REFERENCE(S):          BCC2020/1883888

MEMBER:Peter Booth

DATE:11 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 11 December 2023 at 9:12am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – Diploma of Nursing – poor study history – change in direction of studies – change in level of study – movement records – infrequent returns to India – value of the course – economic circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 June 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 July 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 29 November 2023 to give evidence and present arguments.

5. The applicant was assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.

   Genuine applicant for entry and stay as a student (cl 500.212)

8. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

9. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, 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.

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

11. The applicant gave evidence at the hearing, the substance of which was as follows.

12. The applicant had read the delegate’s decision dated 27 June 2022 refusing his application for a student visa.

13. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.

14. The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “diploma of nursing, start August 22, finish April 24”. The applicant had produced a confirmation of enrolment document to the Tribunal in respect of such a course. The Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.

15. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2).

16. In summary the information provided by the applicant was as follows.

17. The applicant completed secondary education in India in July 2014. He did not disclose any Indian employment history.

18. The applicant arrived in Australia on 5 March 2015 and since that time has returned to India on two occasions, in January 2016 for one month and 13 days and on 31 December 2016 for one month and 10 days.

19. The application for the student visa in question was made on 10 July 2020. The applicant stated his visa history in Australia to be as follows: he held a “student visa” between 24 February 2015 and 15 March 2018 and a “temporary graduate work visa” between 11 January 2019 and 11 July 2020.

20. The applicant stated his study history in Australia to be as follows: he enrolled in a “Bachelors of Mechanical Engineering” due to commence in March 2015 but did not complete it, he then enrolled in a “Bachelors of Accounting” due to commence in September 2015 but did not complete it, he completed a suite of courses described as “CERT 3, 4 and Diploma of Automotive” due to be conducted between March 2016 and January 2018, he completed a Diploma of Leadership and Management between October 2020 and October 2021, he completed an Advanced Diploma of Leadership and Management which commenced in October 2021 and “is studying now a Diploma of Nursing” due to be conducted between August 2022 and April 2024. He also disclosed that he enrolled in a “Bachelors of Business” due to commence on 23 July 2018 but did not commence it. In fact his study history is quite complex and somewhat different to that which he disclosed in this document. It is discussed further below.

21. He responded to a question as to whether he was not enrolled in a registered course of study during certain periods while in Australia as the holder of a student visa as follows: “01/19–07/2020 during this time I was in my temporary work visa (485) where I was working on my skills as a motor mechanic in a workshop”.

22. The applicant stated that he was employed as a “cleaner” between June 2015 until “not sure”, as a “warehouse store person” between January 2018 and April 2019, as a “motor mechanic” between May 2019 and April 2020, as a “team leader” between May 2020 and March 2023, as a “disability support worker” between August 2023 and September 2023 and as a “disability support worker” a different firm from September 2023 to date. He stated that his annual salary from the latter position was “$40,000–$45,000”.

23. The applicant stated that his father and mother reside in India.

24. The applicant did not respond to an invitation to provide details of his property or other significant assets.

25. As to his future employment plans the applicant stated: “please refer to GTE”.

26. As to his expected future remuneration the applicant stated “600,000 –15,000,000 INR/YEAR”.

27. The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary, were as follows.

28. When asked to describe his employment history in India he said “just completed secondary high school and did not work”.

29. The applicant confirmed that he last returned to India on 31 December 2016. The Tribunal observed that he had not returned to India since that time and invited him to comment. He said “came back in 2017, I was studying automotive and I just wanted to complete the course on time, after than a good opportunity to apply for TR, and got a job in a workshop, as the job was new I did not want to go back”. The Tribunal observed that this did not explain why he had not returned to India for nearly 7 years. He said “then Covid 19 was there, so I could not go back as well”. The Tribunal observed that the global pandemic travel restrictions have been lifted for some time. The applicant did not respond.

30. The Tribunal observed that the applicant completed his automotive courses and then successfully applied for a Subclass 485 work experience visa. In the two years during which that visa was valid he was employed as a motor mechanic and then one day prior to the expiry of that visa he applied for the student visa. He was asked to explain. He said “I was working as a motor mechanic, one day before, I do understand”. He was asked why he returned to study. He said “I lost my job due to Covid 19, I had good relationship with my employer, he said I see leadership qualities in you, you can do this and get mechanical shop job in India, this course will help you”.

31. The Tribunal observed that he initially enrolled in a Bachelor of Engineering due to start in March 2015 but did not complete it. The applicant agreed. He was asked when he stopped studying that course. He said “after four and a half months”. He was asked when he abandoned the course or was excluded from it. He said “I withdraw study”.

32. He was invited to comment. He said “I was living in Dandenong, the university was in Ballarat, I was living in Dandenong, it took 3 and a half hours each way, and also when I attended classes, I couldn’t understand the basics and I had difficulty coping with study”. He was asked why he did not change universities or his residence. He said “I was ongoing looking for accommodation in Ballarat, but I couldn’t for the first two months, but I couldn’t cope with the study”. He was asked why he thought he could successfully complete a Bachelor Degree in Mechanical Engineering. He said “at high school my subjects were physics and mathematics, they were my strengths and my parents urge me to do it, it had good job opportunities”.

33. The Tribunal observed the applicant then enrolled in a Bachelor of Accounting course. The applicant agreed. He was asked whether he wanted to comment on the change in direction of his studies. He said “yes totally different”. He was asked why he changed the direction of his studies. He said “I was frustrated with engineering, and I was stressed and homesick, a friend in India said I should do accounting, et cetera this course”. The Tribunal observed that he did not complete the course. The applicant agreed. When asked when he stopped studying he said “I was study in Holmes, in the city, but I couldn’t understand”. He was again asked when he stopped studying the course he said “first semester”. When invited to be more precise he said “in 2016, second month, maybe January or February”.

34. The Tribunal observed that he enrolled in the course on two occasions. He was invited to comment. He replied “initially with the law from the course in engineering, I wanted to get release letter so I could enrolled in accounting, could not get release letter on time, and couldn’t get COE, when I got release letter I got COE”.

35. The Tribunal observed he then enrolled in a suite of automotive mechanical courses. The applicant agreed. The Tribunal further observed that he completed them but various enrolments were cancelled on multiple occasions. The applicant was invited to comment and replied “once when I went home, course was ongoing, but I provided a deferment and extended COE, the other time were done by TRA, the mechanical body, to change the units”.

36. The Tribunal observed that he then enrolled in a Bachelor of Business course. The applicant agreed. He was invited to comment. He said “my family is in farming and business, I’m going from family doing business, also want to open a mechanical shop and do it in India”. He was asked what he needed to complete a Bachelor of Business in order to run a motor mechanic workshop. He said “it would help me to gain business management skills, helping to run a business, automotive course gave me skills to work in the garage, but a Bachelor of Business will help me run an auto repair shop”.

37. The Tribunal observed that he did not complete this course. The applicant agreed. He was asked when he stopped study. He said “I did not commence”. He was asked when the course was due to start. He said 23 July 2018. The Tribunal observed that he had previously completed the Diploma of Automotive studies on 4 June 2018. Further to that he then was granted a Subclass 485 visa valid from 11 January 2019. He was asked what he did between June 2018 and January 2019. He said “during that time I was looking for work, and I started working as a mechanic before I got the work visa”. The Tribunal asked whether he held a student visa between June 2018 and June 2019. He said “I started Bachelor Business in November 2018”. He was asked how long he studied the course for. He said “I withdraw in two months”.

38. He was again asked whether he held a student visa between June 2018 and January 2019. He said “yes”. The Tribunal pointed out that he held a valid Subclass 500 student visa between May 2018 and January 2019. The applicant agreed. The Tribunal observed that between June 2018 and January 2019 he had studied for approximately two months. The applicant agreed. The Tribunal observed this was a substantial gap in study. The applicant agreed, but added “course started in November”.

39. The Tribunal observed that he worked during the period of the Subclass 485 visa and then enrolled in a leadership and management course starting in October 2020. The applicant agreed. He was asked whether he studied between July 2020 and October 2020. He said “no didn’t get enrolment”.

40. The Tribunal observed that he completed the leadership and management course and then enrolled in an Advanced Diploma of Leadership and Management which started in October 2021. The applicant agreed. The Tribunal observed that he enrolled in this course on two occasions and invited him to comment. He said “I’m not sure why they cancelled the first enrolment, then change the course timetable in the course started in the first month of 2022”.

41. He was asked why he studied leadership and management. He said “when I lost the job I am planning to do a business course, this would help me a lot, and get decent pay”.

42. The applicant was asked why he did not return to India permanently when he had finished the three motor mechanic courses. He said “I lost the job and wanted to do leadership course, will help me do a business”.

43. He was asked why he did not return to India permanently when he finished the leadership and management courses. He said “during covid 19, I saw a lot of people are suffering, I lost job, I was undergoing course of leadership and management, I saw my sister, nurse, working very hard, it was very satisfying, being compassionate I gave thought and decided I should give nursing as well”.

44. He was asked how long it took him to complete the suite of automotive courses. He said “about one half year”. When asked to state the duration of the Certificate III he said “one year”, when asked to state the duration of the Certificate IV he said “six months”, when asked to state the duration of the diploma he said “eight months”. The Tribunal observed this was a period of approximately two years. The applicant agreed. Further the Tribunal observed that the Diploma of Automotive was conducted over a 12-month period. The applicant agreed. He was asked how much he had spent in total on these studies. He said “I don’t recall”. When asked to estimate he said “between $20,000 and $25,000”. The Tribunal observed that he had spent two years gaining experience as an automotive mechanic. He said “yes but the first time not full-time, this second job was full-time”. The Tribunal asked the applicant why he decided to throw away two years of his life, three qualifications and between $20,000 and $25,000 to do something completely different. He said “my lack of maturity, and I recall not good for me, to be in a career, anything like pandemic or natural calamity can affect”. The Tribunal observed that global pandemics were not common. He said “I wanted a reliable job in my career”.

45. He was asked when he had secured employment in the healthcare sector in Australia. He said “five months from now, in the sixth month of this year”.

46. He was asked to state the income he had received from being an automotive mechanic and that which he was receiving now. He said “in automotive was $21 per hour now pays $32 per hour”.

47. He was asked what he intends to do when he finishes his current nursing course. He said “as soon as I complete I will apply for registration as an Australian nurse, as soon as I get this I will plan to go on a trip with my sister and family to Queensland, and then plan to go back to India, I have to wait for registration”.

48. He was asked whether he intends to undertake further study in Australia when he finishes his current course. He said “no”. He was asked whether he intends to apply for another work experience visa. He said “I would be eligible to apply”. The Tribunal invited him to respond directly to the question. He said “no I don’t intend to apply for any work visa”. He was asked whether he intended to apply for permanent residence after he completes his nursing course. He said “no, I plan to move back to India”.

49. The Tribunal asked the applicant to state his career intentions. He said “once I complete my study and get registration I will go back to India, I plan to work in ICU”.

50. He was asked whether he owns any assets in India in his own name. He said “not in my name”.

51. When invited to add anything further to his evidence the applicant said “I have completed 80% of the course, attended more than 90% of the classes, only not attended when I got covid 19, I have successfully passed or for exams, I’ve done first placements, I will finish start of next year, I would like you to give me a chance to complete”.

52. The applicant’s representative was invited to make submissions to the Tribunal. He said that they had already provided documents including a submission letter. He noted that the applicant’s past history has been irregular but he is studying now and will finish in the next three or four months.

53. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. An academic transcript in respect of the Diploma of Nursing course appears to show that the applicant is performing satisfactorily. The confirmation of enrolment discloses the applicant is enrolled in a Diploma of Nursing due to be conducted between 16 August 2022 and 2 April 2024.

1. Prior to the hearing the applicant provided a statement in support of his application for review. The statement is headed “genuine temporary entrant statement” and dated 22 August 2023. It has no page or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. The applicant states that his parents “urged me to study mechanical engineering… Moreover I had an inclination towards automobiles from a young age”. He said he was staying in Dandenong but the campus was in Ballarat: “the commute time was taking a toll over my daily routine … I can hardly concentrate on my studies. Also the course load was heavier and the expectations of the teachers were high.” On the advice of a friend he decided to study accountancy because he was persuaded “that the course is easy compared to engineering and that I would score high marks.” He enrolled in a Bachelor of Professional Accounting but “unfortunately, as in accountancy subjects were alien to me” and “I couldn’t gel well with the course”, so he decided to enrol in an “automotive package” due to “my aptitude for engines”. Thereafter he completed Certificate III and Certificate IV, before he then enrolled in a Diploma of Automotive Technology at a different institution “to get better exposure and in-depth knowledge about automobiles”. He also “enrolled in Bachelor of Business course at Stotts College”, although he doesn’t explain why he did this.

2. He states that he completed the Diploma of Automotive Technology in 2018 and applied for a temporary graduate visa “to reduce the financial burden that I placed in my parents shoulders”. He states that “I pause my studies after I got my visa grant”, and he worked as a mechanic at two different firms between August 2017 and May 2020. He also worked as “QA at catch”, before he then “decided to acquire leadership skill set to enhance my chances of starting my own business someday. I then enrolled in Diploma of Leadership and Management and Advanced Diploma of Leadership and Management at Gen Institute”. He states that he successfully completed the Diploma course “but the Advanced Diploma Course seemed very redundant. It was like stating the same thing again and again. Soon I found the course boring and monotonous”. He states that then he was affected by COVID-19 and “I too couldn’t handle the stress and depression during the time. I lost interest in everything as everything around me became meaningless”, however “my perception about my career changed” and he decided not to work as a mechanic and “truly realise the nobility of the healthcare professionals”. He added: “my sister is a nurse and I was amazed by her skills and my respect towards her increased several folds”. He then enrolled in a Diploma of Nursing and will be able to apply “for the post of ‘intensive care nursing specialist’ in specialised hospitals and research organisations in my home country”. He also states that he has “an ambition to become a clinical nursing educator”; he observes that his sister resides in Australia and is an Australian citizen.

3. The Tribunal conducted movement and study history searches. The movement search discloses that the applicant arrived in Australia on 5 March 2015 as the holder of a Subclass 573 student visa due to expire on 15 March 2018; he departed Australia on 5 January 2016 returning on 19 February 2016; he departed Australia again on 30 December 2016 returning on 11 February 2017; he was granted a student Subclass 500 visa valid between 9 May 2018 and 11 January 2019; and he was granted a Subclass 485 work experience visa valid from 11 January 2019 until 11 July 2020 . He applied for the student visa in question on 10 July 2020, one day prior to the expiry of his then Subclass 485 work experience visa.

4. By letter dated 6 October 2023 the Tribunal wrote to the applicant inviting him to comment on certain adverse information which arose as a result of the movement and study history searches. The letter was in the following terms:

   The particulars of the information from the Department of Education’s records are that:

   ·     You enrolled in a Bachelor of Engineering Technology (Mechanical Engineering) to be completed between 2 March 2015 to 31 December 2017. Your enrolment was cancelled on 7 August 2015 due to ‘Student notifies cessation of studies’.

   ·     You enrolled twice in a Bachelor of Professional Accounting to be completed between 20 July 2015 to 31 July 2018, and 7 September 2015 to 31 July 2018. Your first enrolment was cancelled on 3 August 2015 due to ‘Non commencement of studies’. Your second enrolment was cancelled on 21 April 2016 due to Student notifies cessation of studies’.

   ·     You enrolled three times in a Certificate III in Light Vehicle Mechanical Technology to be completed between 15 March 2016 to 14 March 2017, and 20 March 2017 to 6 May 2017, and 24 April 2017 to 6 May 2017. Your first enrolment was cancelled on 20 March 2017 due to ‘Change to course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original’. Your second enrolment was cancelled on 24 April 2017 due to ‘Change to course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original’. You completed your third enrolment.

   ·     You enrolled four times in a Certificate IV in Automotive Mechanical Diagnosis to be completed between 15 March 2017 to 14 September 2018, and 15 March 2017 to 14 September 2017, and 15 March 2017 to 14 September 2017, and 15 May 2017 to 10 November 2017. Your first enrolment was cancelled on 16 March 2016 due to ‘Change to CoE/Student details’. Your second enrolment was cancelled on 14 March 2017 due to ‘Change to CoE/Student details’. Your third enrolment was cancelled on 20 March 2017 due to ‘Deferment/Suspension – Compassionate or compelling circumstances. You completed your fourth enrolment.

   ·     You enrolled three times in a Diploma of Automotive Management to be completed between 15 September 2017 to 14 September 2018, and 15 September 2017 to 14 September 2018, and 15 November 2017 to 9 November 2018. Your first enrolment was cancelled on 14 March 2017 due to ‘Change to CoE/Student details’. Your second enrolment was cancelled on 20 March 2017 due to ‘Change to CoE/Student details’. Your third enrolment was cancelled on 1 December 2017 due to ‘Student notifies cessation of studies’.

   ·     You completed a Diploma of Automotive Technology between 4 December 2017 to 4 June 2018.

   ·     You enrolled twice in a Bachelor of Business to be completed between 23 July 2018 to 30 June 2021, and 19 November 2018 to 30 June 2021. Your first enrolment was cancelled on 7 August 2018 due to ‘Non commencement of studies’. Your second enrolment was cancelled on 15 March 2018 due to ‘Change to CoE/Student details’.

   ·     You completed a Diploma of Leadership and Management between 6 October 2020 to 4 October 2021.

   ·     You enrolled twice in an Advanced Diploma of Leadership and Management to be completed between 20 October 2021 to 18 October 2022, and 5 January 2022 to 18 October 2022. Your first enrolment was cancelled on 8 January 2022 due to ‘Change to a course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original’. You completed your second enrolment.

   ·     You are currently undertaking a Diploma of Nursing to be completed between 16 August 2022 to 2 April 2024.

   Your movement records indicate that:

   ·     You have not left Australia since your last arrival on 11 February 2017.

   A copy of your movement records and a document with screenshots of the results of this PRISMS search accompany this letter.

   Your PRISMS search discloses that you have held twenty different enrolments since commencing study in Australia but have only completed five. You have changed the direction of your study from Engineering Technology (Mechanical Engineering) to Professional Accounting to Light Vehicle Mechanical Technology to Automotive Mechanical Diagnosis to Automotive Management to Automotive Technology to Business to Leadership and Management to Nursing. The level of your qualifications have not followed a linear trajectory.

   This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program.

5. In reply the applicant provided several documents including further copies of documents which had already been supplied to the Tribunal. These documents were not referred to by the applicant during the course of the hearing. Nonetheless the Tribunal takes them into account and gives them appropriate weight. The principal document is a letter from the applicant to the Tribunal dated 19 October 2023. It has both page and paragraph numbers. There are a series of numbered annexes referred to in the letter. The Tribunal makes several observations in relation to the letter. The applicant states that “after many years of studying multiple courses across different areas, I am glad that I have finally discovered my passion in nursing” (paragraph 1). He confirms that he is currently enrolled in a Diploma of Nursing course and has a projected attendance rate of “90%”, and has completed 14 units together with another nine units where he has completed the theoretical part and submitted the assessments. He will commence the remaining units; he has completed 73% of the course, and he has completed three placements and will complete another two placements in 2024 (paragraphs 2–12). The applicant refers to the PRISMS search which discloses that he has enrolled in 20 courses over the last seven years, some of the same courses having been enrolled in multiple times. He refers to the detailed description of the difficulties he faced “during my educational journey in Australia”, which are to be found listed in Annexure 1 and the genuine temporary entrant “on file” (paragraph 13). He confirms that he has completed five courses, a Diploma of Leadership and Management, Advanced Diploma in Leadership and Management, a Diploma of Automotive Technology, a Certificate III in Light Vehicle and Mechanical Technology, and a Certificate IV in Light Vehicle and Mechanical Diagnosis (paragraph 14), after explaining the virtues of the nursing course (paragraph 15), he states that he is a genuine student and on track to complete the Diploma of Nursing (paragraph 16). He states that he is looking forward to returning home to settle down “and start my own family” (paragraph 18). He asserts that his current employment, looking after an autistic person, is important (paragraph 21). The Tribunal observes that in this document he does not state when he intends to return to India.

6. As to his poor study history the applicant refers to his “GTE” statement, presumably that which is referred to above and dated 22 August 2023. He also refers to Annexure 1 to the letter. This is a new document. The electronic file description designates the document as Annexure 1. It is not marked as such, it is undated, unsigned and without page or paragraph numbers. The electronic file description describes the document as “Reasons for Diploma of Nursing”. The document does not have such a heading. This document was not referred to by the applicant while giving oral evidence. Nonetheless it has been taken into account by the Tribunal and given appropriate weight. The Tribunal makes some observations in relation to it. The applicant states that he is a motor mechanic by profession “looking forward to grow my career into the field of nursing”, he states that he was “passionate about automobiles in order to study further in the field [and] dreamt of owning an automobile garage and wanted trade skills of a motor mechanic”. His parents insisted that he studied mechanical engineering so he enrolled in a Bachelor of Engineering (Mechanical) at Federation University (Ballarat campus). He was staying with his sister in Dandenong and the commuting time to Ballarat “was taking a toll over my daily routine”, further “it was my first time away from my home and I was homesick”; this affected his studies and “I could not perform well to”. He decided to take an “easy-going course and secured admission to study Bachelor of Accounting”, but after undertaking the course for six months he realised “this course would not at all help me achieve my dream to pursue a career in automotive industry”. He then decided to study the suite courses in automotive matters; he completed the courses in 2018 and “opted to gain international work experience through temporary graduate visa”. During that time he was employed as a mechanic and wanted to “return to my home country and start working for multinational automotive companies” and in order to “learn some managerial skills I also applied to study for diploma leadership and management leading to an advanced diploma of leadership and management”. He states that he had finished the Diploma course and was “halfway through for advance diploma course”, however the impact of the global pandemic made him realise the demand for health professionals “has risen, not only India, globally”. He then decided to “help my countrymen by contributing to the health sector”, and accordingly enrolled in a Diploma of Nursing, pursuant to which “I’ll get to specialise in diverse areas of nursing such as general nursing, or midwifery, mental health nursing, rehabilitation nursing and clinical nursing”. He then extolled the virtues of the nursing course and the need for nurses in India, finally he states his parents are elderly and that “it is my duty to take care of them in their old age”. This letter is substantially similar to the letter dated 22 August 2023 but has some differences.

   CONCLUSIONS

7. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.

8. Without diminishing the applicant’s evidence, it can be summarised as follows.

9. The applicant completed secondary education in India in 2014, he has no employment history in India. He arrived in Australia on 5 March 2015 is the holder of a student visa valid until 15 March 2018. He has returned to India on two occasions but has not returned to India since he returned to Australia on 11 February 2017. The applicant explained his infrequent returns to India on the basis of study commitments, work commitments and global travel restrictions. These explanations do not adequately explain why the applicant has only returned to India on two occasions since 2015. His explanations are unconvincing.

10. His visa history is as follows: he held a Subclass 573 student visa until 15 March 2018; a Subclass 500 student visa between 9 May 2018 and 11 January 2019; and a Subclass 485 work experience visa between 11 January 2019 and 31 July 2020. The application for the student visa in question was made on 10 July 2020, one day prior to the expiry of his then Subclass 485 work experience visa.

11. His study history in Australia is poor and set out above. In summary he has held 20 different enrolments, but only completed five courses. He has enrolled in the same course on multiple occasions. He has changed the direction of his study from engineering, to accounting, then automotive maintenance, then business, then leadership and management and now nursing. He has completed Certificates III and IV and a Diploma Automotive Management comprising a suite of courses, a Diploma of Leadership and Management, and Advanced Diploma of Leadership and Management. Now he is studying nursing, which he expects to complete in April 2024. He has also changed the level of his study from Bachelor level courses to vocational level courses.

12. As to the multiple enrolments, the applicant said on one occasion he returned to India and was granted a deferral. The study history does refer to compassionate grounds and although his explanation is lacking in detail the Tribunal accepts it. He also said that other cancellations were for reasons for which he was not responsible. The study history search does suggest that it may have been for administrative reasons. Again his explanation is lacking in detail but the Tribunal accepts it.

13. As to his failure to successfully complete a Bachelor of Engineering, the applicant said that lengthy travelling made it difficult for him to attend classes in the course. His explanations as to why he did not relocate or change course provider are unconvincing and not accepted. The real reason seems to be that he could not cope with the course. The Tribunal considers it reasonable to expect a student who enrols in a course of study to have some basis to be able to confidently expect that the course will be successfully concluded. The applicant did not explain to the Tribunal’s satisfaction why, if he had successfully studied mathematics and physics in his secondary studies, he could not successfully undertake a degree in engineering. As to his failure to complete an accounting degree he said he undertook it on the basis of a friend’s advice and because he was good at mathematics. Again the Tribunal expects that someone who undertakes a course will have a reasonable basis for doing so. The applicant did not explain to the Tribunal’s satisfaction why, if he has studied mathematics in secondary school he was unable to cope with the mathematics involved in the accounting degree. However, he did not say that he had studied accounting in his secondary education. He did not explain why he considered that he could successfully undertake a Bachelor level course in accounting, having not previously studied an accounting subject. On balance his explanations are lacking detail and somewhat unconvincing.

14. The applicant sought to explain the change in direction of his study from engineering and accounting to automotive studies on the basis of an interest in automobiles. While this may be the case, it does not explain why the applicant did not undertake such studies initially. The applicant changed the direction of his studies from automotive matters to business and leadership and management. This was because an employer suggested to him that he had leadership qualities and should study such courses in order to run an automotive garage. The applicant did not explain to the Tribunal’s satisfaction why he needed to undertake a Bachelor of Business course in order to open or run an automotive garage or indeed why he needed to study leadership and management in order to do the same. His explanations are unconvincing.

15. The applicant obtained a work experience visa and then conducted himself as a motor mechanic for approximately two years. He had successfully completed the three automotive maintenance courses. It was one day prior to the Subclass 485 visa that the applicant applied for his new student visa in order to study business and leadership courses. The applicant has not explained to the Tribunal’s satisfaction why he did not permanently return to India having obtained the qualifications in mechanical matters and having had two years of experience working in that field.

16. Lastly, after losing his employment as a mechanic the applicant observed his sister, a nurse, working during the global pandemic. It was at this time that he decided to abandon the time and money he had put into becoming qualified as a motor mechanic and undertake the studies of a nurse. His reasons were partly altruistic but partly because he wanted employment which would survive a global pandemic. Both the reasons are inconsistent with the significant amount of time and money he had invested in becoming a motor mechanic, particularly when viewed against the likelihood of another global pandemic occurring in his working lifetime. The Tribunal also observes that he is deriving significantly more income as a student nurse than he did as a qualified motor mechanic. This may well explain the reason for his change in direction. In any event his explanations are unconvincing.

1. The applicant owns no real property in India. His mother and father reside in India. His sister resides in Australia and is an Australian citizen. He intends to seek employment in the nursing sector.

2. The applicant has not explained to the Tribunal’s satisfaction why he has changed the level of his study from higher education study to vocational courses in Australia, why he has changed the direction of his study in Australia on numerous occasions, why he has not pursued employment using his existing qualifications and experience in automotive maintenance, why he has not returned to India since 2016, why he did not return to India permanently having completed several courses of study in Australia and gained experience in automotive maintenance, why he did not return to India permanently when he successfully completed courses in leadership and management which he stated that he needed in order to undertake the business of being a motor mechanic in India, why he did not return to India permanently when his studies were faltering, why he did not return to India permanently when his student visa application was refused, why his existing skills and experience are insufficient to enable him to embark on a career path, or cogent details of his future career path.

3. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

4. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. While the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

5. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 5 March 2015 as a holder of a Subclass 573 student visa, valid to 15 March 2018. The proposed study would extend the applicant’s stay until at least April 2024. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. While plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.

6. The Tribunal places little weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant has changed the level and direction of his study on numerous occasions while in Australia. His poor study history and inability to commit to a study path does not give the Tribunal confidence that he will seek employment in nursing, notwithstanding his statements to that effect. Secondly, having regard to his poor study history there exists reasonable doubt that he will complete his current course of study on time or at all. Thirdly, the applicant’s epiphany about discovering a passion for nursing during the global pandemic when he has been engaged in Australia as a full-time student since 2015 is somewhat unconvincing.

7. The Tribunal observes that the applicant’s current study path is inconsistent with the applicant’s employment history in Australia as a motor mechanic and is inconsistent with his plans when he entered Australia.

8. On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has significant qualifications and experience, as a motor mechanic, obtained in Australia. Further the Tribunal is not convinced, having regard to the applicant’s poor study history, that he will complete his nursing qualification on time or at all. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.

9. The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

10. The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.

11. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

12. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 5 March 2015 the applicant has spent more than seven and a half years in Australia and only returned to India on two occasions and not since 2016, he owns no assets in India, he has no employment history in India, his sister resides in Australia and is an Australian citizen, he appears to have stable employment in Australia and intends to reside in Australia, if permitted, until at least April 2024, all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be poor.

13. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. While the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted student visas specifically to enable him to achieve that goal. The applicant was most recently granted a Subclass 485 work experience visa which would have facilitated the applicant’s gaining experience in his desired field, namely, automotive maintenance. The applicant lodged this student visa application one day prior to expiry of the work experience visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.

14. The Tribunal has considered all of the information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

15. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

16. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.

17. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).

18. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

19. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Peter Booth
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.