Sharma (Migration)

[2022] AATA 1821

Sharma (Migration) [2022] AATA 1821 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raghav Sharma

CASE NUMBER:  2112254

HOME AFFAIRS REFERENCE(S):          BCC2018/4423086

MEMBER:Frank Russo

DATE:9 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 9 June 2022 at 2:37pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – genuine temporary entrant – visa and study history – long stay, cancellations of enrolments, changes of subject area and periods of non-enrolment – completed courses then more cancellations of lower-level courses in different subject area – no course progress in current subject area – medical history, including COVID-19 – work and siblings in Australia – parents, land and job offer in home country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 4 January 2019 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 October 2018. 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 31-year-old Indian national. The Student visa application was made in respect of his enrolments in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at Australian College of Trade.

5. On 22 January 2019 the applicant lodged an application to the Tribunal for review of the delegate’s decision of 4 January 2019.

6. On 2 October 2020, the Tribunal (differently constituted) held a hearing, which the applicant attended by telephone. The Tribunal (differently constituted) made a decision on 3 December 2020, affirming the delegate’s decision.

7. The applicant made an application for review to the Federal Circuit Court, and on 19 August 2021 the Federal Circuit Court ordered by consent that the decision of the Tribunal (differently constituted) dated 3 December 2020 be quashed and remitted the matter back to the Tribunal to determine the review according to law, on the basis that the Minister conceded that the Tribunal’s (differently constituted) decision was affected by jurisdictional error in that it failed to consider the applicant’s undated written submissions titled ‘Genuine Temporary Entrant’ which explained his reasons for choosing not to undertake his proposed study in India, and his reasons for choosing Australian College of Trade as his education provider, therefore failing to have regard to relevant considerations identified in paragraphs 9(a) and 11(e) of Ministerial Direction No. 69. The matter has been remitted back to the Tribunal pursuant to the Federal Circuit Court’s order of 19 August 2021.

8. The applicant appeared before the Tribunal by telephone on 11 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 applicant for entry and stay as a student.

11. In addition to the application form, the applicant provided the Tribunal with a copy of the delegate’s reasons for decision and notice of the decision from the Department.

12. On 1 May 2020, the applicant provided the Tribunal with the following documents in response to a s.359(2) invitation from the Tribunal to provide information:

    a.A completed ‘Request for Student Visa Information’ form;

    b.An undated genuine temporary entrant (GTE) statement;

    c.Confirmation of enrolment (CoE) for the Certificate IV in Commercial Cookery at Australian College of Trade Pty Ltd from 4 May 2020 to 1 November 2021;

    d.Letter from ‘Ashok Catring & Restaurant’, dated 29 April 2020, offering future employment; and

    e.Consultation notes from Prime Medical & Heart Centre, dated 30 October 2017, and report of abdominal scan from Mann Scanning & Diagnostic Centre, dated 31 October 2017, both in Jalandhar, India.

13. On 24 September 2020 the applicant provided a response to the hearing invitation for the 2020 hearing, together with further copies of the CoE provided for the Certificate IV in Commercial Cookery and his undated GTE statement.

14. On 22 September 2021 the applicant provided a change of contact details form.

15. On 5 May 2022 the applicant provided a response to the hearing invitation for the May 2022 hearing, in which he also attached the following CoEs:

    a.CoE for Certificate IV in Commercial Cookery at Mid City College from 23 May 2022 to 19 November 2023, created on 5 May 2022; and

    b.CoE for Diploma of Hospitality Management at Mid City College from 20 November 2023 to 24 March 2024, also created on 5 May 2022.

16. Following the hearing, on 19 May 2022, the applicant provided the Tribunal with an email which attached these additional documents:

    a.Submission dated 19 May 2022, titled ‘Further explanation on reasons for not able to maintain consistent academic course progress between 2018 and current’;

    b.Attachment with copies of the following Australian qualifications obtained by the applicant from Apex Institute of Education (Apex), together with transcripts for each course: Diploma of Management awarded on 7 May 2014, Advanced Diploma of Management awarded on 28 September 2015 and Advanced Diploma of Management (Human Resources) awarded on 20 September 2016;

    c.Attached labelled ‘medical certificate and report’ which attaches a copy of the 31 October 2017 abdominal scan report already on file, copy of handwritten medical certificate from Prime Medical & Heart Centre, dated 12 May 2022, regarding treatment received in 2017, copy of scans dated 31 October 2017 and flight booking for return flight from Sydney to Delhi from 29 October 2017 to 17 November 2017;

    d.Copies of current CoEs for the Certificate IV in Commercial Cookery and Diploma of Hospitality Management that had already been provided;

    e.A second job offer letter from Ashok Catring & Restaurant, dated 17 May 2022;

    f.Medical certificate from Dr H L Chopra Memorial Clinic, dated 24 April 2020, regarding treatment of the applicant’s father; and

    g.Two emails from ACT Health COVID Response, dated 6 February 2022, indicating the applicant had tested positive to COVID-19, and 13 February 2022, indicating the applicant had completed his isolation period as of 11:59pm on 13 February 2022, together with screenshot of texts dated 5 and 10 February 2022, which provided results of COVID-19 tests.

17. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

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

18. 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?

19. 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.

20. 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.

    Applicant’s oral evidence at the hearing

21. At the hearing in May 2022 the applicant confirmed that he arrived in Australia in February 2012 holding a Student visa, arriving for the purpose of studying Youth Work at Canberra Institute of Technology. He had arrived in Australia a couple of times before this holding a Visitor visa, stating that he did so because his sister was here.

22. When asked what courses he had completed in Australia, he indicated that he had undertaken a year of Youth Work, but was not awarded any qualifications in that field. He then completed a Diploma of Management, an Advanced Diploma of Management and an Advanced Diploma of Management (Human Resources).

23. The applicant confirmed that at the time of the hearing he was enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at Mid City College. The applicant indicated that he was previously enrolled in courses in this field, but stated that he got COVID-19 and his plans ‘lapsed’. When questioned further about this, he stated that he received a positive test for COVID-19 on 5 February 2022. He stated that he had it for 7 to 10 days. He confirmed that he was not hospitalised, but stated that it takes time for your body to recover from it. He stated that he received a negative result after 10 days, but the recovery period took him three to four weeks, but at the time of the hearing he was fine.

24. When questioned why he has chosen to enrol in his proposed studies in Commercial Cookery and Hospitality Management, the applicant stated that the restaurant field is very much going ahead. He stated that he wants to study the courses and return to India to open his own restaurant, which his father will help him to open. He stated that this field will never ‘go down’, as during the COVID-19 pandemic restaurants were still doing takleaway even though the restaurants were closed.

25. When questioned whether he had taken any steps towards his stated plans, he responded that he has talked to a couple of friends and family members in India and they will motivate him to finish his course as soon as possible, as they tell him they can do business together in India. He stated that he gets new tips from the internet as to what to do. He stated that his father has a property in India and they have decided to start a business there. He stated that one of his uncles has a restaurant and offered for the applicant to work for him. He stated that he therefore has some options, but his first priority is his business, which his father will help him with.

26. When questioned about what kind of restaurant he plans to open, the applicant stated that he intends for it to be Indian and Australian fusion. He stated that he has learned to cook an Australian breakfast menu, such as bacon and eggs, but in India he will need to use something other than bacon. He stated that one of his friends opened a donut shop three to four years ago, which gave him the idea that he can do something like that. The Tribunal put to the applicant that his restaurant plans appear to be at the idea stage, rather than him having a concrete plan. The applicant responded that he talked to his father, who agreed to help him and that others are motivating him.

27. As to how the proposed courses of study will assist the applicant with his future plans, the applicant responded that the courses will teach him practical and theory. He stated that the practical skills include things like how to cut vegetables and fruits. He stated that he had knowledge of Indian food from cooking at home, but when he goes to college it will teach him about the things cooked in Australia. When asked how it will improve his employment opportunities or assist him with his business plans, he stated that the course teaches him how to run a business like a hotel. He stated that he will learn new skills. He stated that he already has management skills, but he will learn everything he needs to know regarding how to run a business or that will help him with his future employment.

28. When asked if he had done any research into the income he could expect to obtain in his home country from the qualifications he proposes gaining, the applicant stated that he checked with family members and a cousin, who are running a restaurant in India. He stated that they talked about what they needed to invest in a restaurant or hotel, but they did not talk about income. He stated that he is from Jalandhar in Punjab, where there is a high demand for restaurants and hotels.

29. As to why he has chosen his current education provider, he stated that he obtained feedback about the college from many students, who said the study environment and the teachers were good.

30. As to why he had chosen to study the proposed courses in Australia, rather than India, the applicant stated that he came to Australia first of all holding a Tourist visa. His sister and friends were studying at the time. He checked with them and found the education system is good in Australia, with a focus on practical skills. He stated that an Australian education is in high demand in other countries. When questioned about any research he had undertaken into similar courses in India, the applicant stated that a friend of his studied in India, but after completing the course they were unable to get a good job and moved to Australia or Canada. He stated that he can build his own future if he studies in Australia.

31. As to his personal circumstances, the applicant gave evidence that his personal ties to India include his mother and father. He stated that his grandmother recently passed away. His sister and brother both live in Melbourne. His sister is a citizen and his brother has completed his studies and holds a temporary resident visa. His sister gave birth last year and his parents were visiting at the time of the hearing. He expects they will return to India in about a month’s time. The applicant is single and lives with a housemate in Canberra.

32. The applicant confirmed that he has never worked in India. He indicated he has provided evidence of legal ownership of a property in India. He gave evidence that he has worked as a taxi driver since 2019, and prior to that he worked at Coles. When asked if he had worked in the hospitality industry, he responded no, but a friend of his owned a noodle shop, which he would help out with, although it is closed now. When questioned further, he indicated that he worked as a pizza chef in 2016 and also previously worked at KFC, cleaning equipment.

33. The applicant gave evidence that other than the visa application under review, he has never had a visa application refused, cancelled or considered for cancellation. He does not have any other outstanding visa applications. He stated that he has complied with visa conditions, other than times when he may not have been enrolled. He stated that there are no political or civil reasons why he does not wish to return to India.

34. When asked about any other relevant matters, the applicant stated that he needs on chance to prove himself and prove that he can finish his studies and open a business in India.

    Information put to the applicant from his PRISMS enrolment record

35. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put the following particulars of information to the applicant from his PRISMS enrolment record:

    a.The applicant was enrolled in UC English Language Programs from October 2011, but this enrolment was cancelled in November 2011 due to non-commencement of studies;

    b.The applicant also had enrolments in a Diploma of Communication (Extended), which was to commence in 2012, and a Bachelor of Social and Community Studies, which was to commence in 2013, but both courses were cancelled in October 2011 due to non-commencement of studies;

    c.The applicant was enrolled in a Diploma of Youth Work from February 2012 to December 2013, but this enrolment was cancelled on 25 February 2013 due to the applicant changing to a course within the same sector;

    d.The applicant was also enrolled in a Diploma of Community Services Work from February 2013 to December 2014, but this was cancelled in March 2013 due to the applicant transferring to a course with another provider;

    e.He was enrolled in a Certificate IV in Business in 2013, but this was cancelled in May 2013 due to non-commencement of studies;

    f.The applicant had four enrolments in the Diploma of Management from April 2013 to July 2014, one of which the applicant completed early on 4 March 2014;

    g.He was enrolled in an Advanced Diploma of Management from May 2014 to November 2014, which he completed;

    h.In 2014 he was enrolled in a Diploma of Human Resources Management, but this enrolment was cancelled in May 2014. He was enrolled in an Advanced Diploma of Management (Human Resources)  from December 29014 to June 2015, which he completed;

    i.The applicant then had a series of enrolments in Marketing courses from August 2015 to August 2018:

    i.He had two enrolments in a Certificate IV in Marketing, the first of which was cancelled in 26 January 2016 due to unsatisfactory course progress. His record indicates that he finished his second enrolled in this course on 15 May 2016;

    ii.He had two enrolments in the Diploma of Marketing from 11 July 2016 to July 2017, the first of which was cancelled in January 2016 due to non-commencement of studies. The second enrolment was cancelled on 13 June 2018 due to unsatisfactory course progress;

    iii.He had an enrolment in the Advanced Diploma of Marketing from August 2017 to August 2018, which was also cancelled in January 2016 due to non-commencement of studies;

    j.From 9 October 2017 until the present, the applicant has had multiple enrolments in the Certificate IV in Commercial Cookery, and more recently also in a Certificate III in Commercial Cookery and the Diploma of Hospitality Management, as follows:

    i.His first enrolment in the Certificate IV in Commercial Cookery was from 9 October 2017 to 7 April 2019, but was cancelled oin 9 May 2018 due to non-payment of fees;

    ii.His second enrolment in the Certificate IV in Commercial Cookery was from 15 October 2018 to 12 April 2020, but was cancelled on 15 May 2019 because the applicant notified he was ceasing his studies;

    iii.His third enrolment in the Certificate IV in Commercial Cookery was from 4 May 2020 to 1 November 2021, but was cancelled on 18 April 2021 due to unsatisfactory course progress;

    iv.The applicant then enrolled in a package course including a Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, which commenced on 18 October 2021 and was due to end on 12 November 2023. However, the applicant’s enrolment in the Certificate III in Commercial Cookery was cancelled on 14 April 2022 due to unsatisfactory course progress. His enrolments in the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management were also cancelled on the same day;

    v.The applicant is currently enrolled in a Certificate IV in Commercial Cookery commencing on 23 May 2022 and ending on 19 November 2023, and a Diploma of Hospitality Management commencing on 20 November 2023 and ending on 24 March 2024.

1. The Tribunal put to the applicant that this information was relevant in assessing whether he genuinely intends to stay in Australia temporarily for the purpose of study. In particular, the information may indicate that he has enrolled in a range of courses in different fields in the vocational sector to maintain ongoing residence in Australia, including vocational courses in Youth Work, Communication, Management, Business, Human Resources Management, Marketing and now Commercial Cookery and Hospitality Management. The information may also indicate that the applicant has not successfully completed a course of study since he completed the Advanced Diploma of Management (Human Resources) in 2015, or possibly the Certificate IV in Marketing in 2016, which may indicate that he has not made sufficient academic progress. In addition, the information indicates that he has had multiple course cancellations, the two most recent of which were cancellations of the Certificate IV in Commercial Cookery in April 2021 and the cancellation of the Certificate III in Commercial Cookery in April 2022, both for unsatisfactory course progress.

2. Further, the information may indicate that the applicant has not been enrolled in courses of study for significant periods of time since commencing his studies in Commercial Cookery, including:

   a.From 9 May 2018 until 15 October 2018, a period of over 5 months;

   b.From 15 May 2019 to 4 May 2020, a period of almost an entire year;

   c.From 18 April 2021 until 18 October 2021, a period of 6 months.

3. The Tribunal put to the applicant that the information may also indicate that he has been enrolled in courses in Commercial Cookery since October 2017, and that over four years had passed, during which he has not successfully completed any qualifications. He is now enrolled in a package course leading to the Diploma of Hospitality Management, ending in April 2024, which would bring his time as a student in Australia to over 12 years, which raises doubts about his claim that he intends to remain in Australia only temporarily.

4. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

5. The applicant confirmed that he understood the nature of the document and wished to comment on the PRISMS enrolment record at the hearing. The applicant responded that his CoE was cancelled. He stated that he had already explained at the previous hearing before the Tribunal that he did not hold a visa, so he could not hold a CoE. He stated however that his most recent CoEs were cancelled because he had COVID. He stated that he couldn’t go to the college, but the college asked him to provide a medical certificate. He told the college that he could not provide a medical certificate and told them they could check his health records. He stated that he lost weight. He told the Tribunal that the cancellation of the previous CoE was his mistake, which he had also explained to the previous member who heard the application for review, but asked that he be given a chance as it is his future.

6. The Tribunal put to the applicant why, if his most recently cancelled CoE was cancelled due to COVID-19, it was cancelled in April 2022 and not in February 2022 when he had COVID-19, and why it was cancelled for unsatisfactory course progress and not due to compelling or compassionate circumstances. The applicant responded that he would send the Tribunal an email with information about his COVID-19 status after the hearing. He then stated that he knew he had been enrolled in the course for a long time without completing it and it was his mistake that it was cancelled. He stated that he accepts his mistakes and will send the Tribunal screenshots of his COVID-19 test results. The Tribunal questioned whether he had provided this information to his education provider. The applicant stated that he will check his emails. He stated that he may have sent it, but if he hasn’t, it is his mistake. He stated that he did not attend the college for more than 6 months and he should have emailed them, but didn’t think of this at the time.

   Other potential concerns raised with the applicant

7. In addition to the concerns out to the applicant regarding his enrolment information in his PRISMS record, the Tribunal raised a number of other concerns and gave the applicant opportunities to comment or respond to each. The concerns raised included, but were not limited to, the following:

   a.The length of the applicant’s proposed stay in Australia until November 2024, a period of over 12 years, raises concerns about his stated intention to remain in Australia only temporarily, and that he may be using the Student visa programme to maintain ongoing residence in Australia;

   b.The applicant had provided some medical evidence, but this evidence and the other reasons provided may not be a sufficient explanation for the poor academic progress he has made, particularly since 2017; and

   c.The presence of the applicant’s brother and sister in Australia may indicate the applicant has personal ties to Australia which would act as an incentive for him to remain after he completes his proposed studies.

8. I have set out the applicant’s responses to these concerns in my findings below, where relevant to adverse findings which I make. The applicant requested additional time to provide the Tribunal with additional information about his results for COVID-19 testing and to provide another job letter from Ashok Catring & Restaurant. The Tribunal granted the applicant an additional 14 days to provide the information. The applicant provided a response within the given timeframe and the Tribunal has considered the documents provided.

   Findings regarding factors set out in Direction No. 69

9. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on several factors as set out below.

   The applicant’s circumstances in his home country

10. I have considered the applicant’s stated reasons for undertaking his proposed study in Australia rather than his home country, including his claims that courses in Australia are focused on practical skills and qualifications from Australia are in high demand overseas. I have also considered the information which the applicant has provided in his GTE statement provided to the Tribunal in May 2020, under the heading of ‘Why I am Not Choosing India?’, including practical-based learning and creativity in education in Australia, as well as his perceived value in obtaining Australian qualifications. I have also had regard to the similar reasons which the applicant has provided in the completed Request for Student Visa Information form. I make no adverse findings with respect to the factor at cl. 9(a) of Direction No. 69.

11. I accept that the applicant’s parents live in India. Although they were in Australia on Visitor visas at the time of the hearing, he claimed that they intended to return to India in approximately one month, and I accept this. I accept that he communicates with his family by telephone, social media and texts. The applicant claimed at the hearing that he has land in his name in India. In the completed Request For Student Visa Information form he lists under his assets a commercial shop in India valued at $60,000 AUD. I am prepared to accept that the applicant or his family have such assets. The applicant has not worked in India and has not lived in India since 2012. He claims that he could obtain employment as a chef with friends or relatives, and provided an updated offer of employment following the hearing, which I have considered. In his response to the Request for Student Visa Information, he has not provided any information about community ties in India. I accept that the applicant has personal ties to his home country by way of his parents and some assets in land/a shop, as well as potential job offers which give him some employment options when he returns to India, which would serve as an incentive for the applicant to return to his home country, and I take these into account in considering the applicant’s circumstances as a whole.

12. The applicant has not provided detailed information as to his economic situation. In his completed Request for Student Visa Information form, the applicant indicated that he has worked as a taxi driver since January 2017, prior to which he worked as Assistant-Night at Woolworths for over two years, and prior to that as a Pizza Chef at Pizza Hut. The applicant confirmed at the hearing that he currently continues to work as a taxi driver. The applicant has not provided salary information for his work as a taxi driver, nor for any previous employment. He has not provided taxation records or other information to indicate his current economic circumstances in Australia. The Tribunal considers it does not have a complete picture of the applicant’s economic circumstances, and on this basis does not make any adverse findings regarding the factor at cl. 9(c) of Direction No. 69.

13. The applicant confirmed at the hearing that there are no civil or political issues that would act as an incentive for him to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

    The applicant’s potential circumstances in Australia

14. I accept that the applicant is single and shares accommodation with a housemate in Canberra. He has not provided any details about community ties in Australia. The applicant gave evidence that his sister is now an Australian citizen and that his brother is currently also living in Melbourne and holds a temporary resident visa after completing his studies. When concern was raised with the applicant regarding these ties and whether they may act as an incentive for him to remain in Australia, he responded that his sister and brother have their own lives and he wants to live with his parents in India. I note that the applicant lives in Canberra, rather than Melbourne, where his brother and sister live. I note also that his brother is in Australia on a temporary visa. I note however that the applicant’s evidence that his sister is now an Australian citizen and note the absence of any siblings currently living in India, as well as his evidence of his parents’ recent visit to Australia. I consider the applicant has some family ties with Australia which may act as some incentive to remain in Australia, and take this into account in assessing his circumstances as a whole.

15. As noted above, the applicant has not provided details of his current salary. He claims he has worked as a taxi driver since 2017. I make no adverse findings about the applicant’s economic ties to Australia and consider there is insufficient evidence to indicate he has been building a career in Australia.

16. As noted above, the Tribunal used the procedure set out in s.359AA to put to the applicant adverse information from his PRISMS enrolment record which may indicate that he is using the Student visa programme to circumvent the intentions of the migration program and to maintain ongoing residence. The applicant was first granted a Student visa in January 2012 to undertake higher education studies towards a Bachelor of Social and Community Studies. Between 2013 and June 2015 the applicant completed and was awarded a Diploma of Management, an Advanced Diploma of Management and an Advanced Diploma of Management (Human Resources), for which he has provided the Tribunal with copies of the award of these qualifications. Although his PRISMS enrolment record indicates that he completed a Certificate IV in Marketing in May 2016, the applicant did not list this as one of his qualifications in his oral evidence. He has not provided a copy of such a qualification in the combined copies of qualifications which he has provided as attachments to the Department and Tribunal. The applicant however declares in the completed Request for Student Visa Information Form that he completed this course, and I am prepared to accept that he completed it.

17. On the applicant’s own evidence, and on the basis of the information in his PRISMS record, the applicant has not completed any courses of study since May 2016. He has provided no transcripts or records of any academic achievement in the 6 years since then. He claims in his written GTE statement that Apex refused to release any transcripts because he would not pay a fine relating to previously unpaid fees. His PRISMS record indicates that his enrolments in the Diploma and Advanced Diploma of Marketing were cancelled in January 2016 because of non-commencement of studies. A further enrolment in the Diploma of Marketing was cancelled on 13 June 2018 because of unsatisfactory course progress.

18. From October 2017 to the present time the applicant has had various enrolments in courses in Commercial Cookery and Hospitality Management, but his PRISMS record indicates that he has made poor progress with these qualifications and his enrolments have been punctuated by lengthy periods in which he has not been enrolled in a course of study. Of particular concern are:

    a.the applicant’s five enrolments in the Certificate IV in Commercial Cookery from 2017 to the present, with no evidence provided of any progress in this course;

    b.The applicant reverting to a lower level of study in October 2021 by enrolling in the Certificate III in Commercial Cookery;

    c.His enrolment in the Certificate IV in Commercial Cookery was cancelled in April 2021 due to unsatisfactory course progress, and most recently, his enrolment in the Certificate III in Commercial Cookery was also cancelled for unsatisfactory course progress on 14 April 2022.

19. I have had regard to the applicant’s stated reasons for the lack of course progress since May 2016, including the medical records which he has provided and his claims regarding the effect of a positive COVID-19 diagnosis, as well as his other reasons provided in writing and in his oral evidence, but find these do not offer sufficient explanation for his poor academic record over a period of approximately 6 years.

20. The applicant gave evidence of a medical condition which he experienced in 2017. He has previously provided to the Tribunal copies of an abdominal scan report and abbreviated and largely illegible handwritten notes from his treating doctor, both dated in October 2017. Following the hearing, the applicant provided a brief handwritten report dated 12 May 2022 from the doctor who treated him for the condition in October 2017. The report of 12 May 2022 indicates that the applicant presented in October 2017 with ‘Hematoma x two wks’ for which he was evaluated, and for which he ‘took treatment for 3-4 weeks,’ although the nature of the treatment is not specified. The report indicates that the applicant was pain free and asymptomatic by the end of the treatment. The applicant has not provided any evidence of any other medical treatment or ongoing medical issues other than this treatment in October 2017, which according to the May 2022 report, was resolved by the end of November 2017, other than his evidence regarding contracting COVID-19 in February 2022.

21. As to his claims regarding COVID-19, the applicant has provided copies of emails received from ACT Health COVID-19 Response, which indicate that he tested positive to COVID-19 by Rapid Antigen Test or PVR on 5 February 2022 and he was required to isolate for 7 days, until 11:59pm on 13 February 2022, and following the lapsing of this period he was notified that he was able to leave isolation without requiring a further test. The applicant has also attached a mobile telephone screenshot which shows text results for COVID-19 tests. This screenshot indicates that the applicant received a positive COVID-19 result for a test collected on 5 February 2022, however it also includes the top section of a further text message which indicates that the applicant underwent a further COVID-19 test on 10 February 2022, for which the virus was not detected. The applicant confirmed that he was not hospitalised for COVID-19, although he claims that it took him a three to four weeks to recover.

22. I accept that the applicant suffered a haematoma in October 2017, which was successfully treated in India and for which he recovered within one month. I also accept that the applicant tested positive for COVID-19 in February 2022 and was required to isolate for 7 days. I am also prepared to accept the applicant’s evidence that he required three to four weeks to fully recover from COVID-19. I do not consider the evidence of these conditions a sufficient explanation for the poor academic performance, which includes three course cancellations for unsatisfactory course progress in January 2016, April 2021 and April 2022, as well as three significant periods of time after May 2018 in which he did not hold an enrolment, the longest of which was for almost an entire year from May 2019 to May 2020.

23. I do not find the applicant’s claims that his most recent enrolment in the Certificate III in Commercial Cookery was cancelled in April 2022 to be convincing or compelling. The applicant’s PRISMS record indicates that his enrolment was cancelled because of unsatisfactory course progress. The Tribunal put to the applicant that if he was unable to progress with his studies because of a diagnosis of COVID-19 in February 2022, why was his enrolment instead not cancelled for compelling or compassionate grounds. The applicant stated that his college had asked him to provide a medical certificate, but he could not provide a medical certificate and told them that they could check his health and that he had lost weight. The Tribunal questioned the applicant whether he had sent his education provider a copy of any notices he received regarding his COVD-19 status. He gave a vague response, stating that he would check his emails and that maybe he had sent it. He stated that he understood that if he did not send such information, it is his mistake. The applicant then admitted that he had not gone to the college for more than 6 months. The Tribunal gave the applicant two weeks to provide any additional documents, including any communication he had sent to his education provider about his COVID-19 status. The applicant provided the Tribunal with the above emails and screenshots, but did not provide any evidence of any communication he had with his education provider.

24. There is no supporting evidence before me to indicate that the applicant provided his college with a copy of his COVID-19 test results or of any other advice to his college to indicate that he was unfit for studies or required a deferral of his studies. While I accept that the applicant’s ability to study may have been briefly affected by his positive diagnosis for COVID-19, including a 7-day period of mandatory isolation, there is no supporting evidence of any affect beyond this, and I consider it was the applicant’s responsibility to inform his education provider, including to provide any medical information requested by his education provider. I also consider that the applicant could have requested deferral of his studies, but did not do so. Having considered the evidence as a whole, I consider the applicant has not been entirely honest about the circumstances surrounding the cancellation of his enrolment in April 2022 and prefer to accept the information contained in the applicant’s PRISMS record, which indicates it was the result of unsatisfactory course progress.

1. I have also considered the applicant’s other stated reasons for the number of course cancellations he has had and his poor progress with his studies since May 2016, but do not find they offer a convincing or compelling explanation for his performance over a period which stretches to over 6 years. I have considered the medical report submitted for the applicant’s father’s ongoing medical treatment since 2017, which in his GTE statement to the Tribunal, he claims led to a delay in paying his student fee, following which Apex insisted that he pay a fine and would not issue transcripts for the Certificate IV and Diploma courses he had been studying until he paid a huge sum of money.

2. Since May 2016 the applicant has not successfully completed any courses of study, has had multiple enrolments in Commercial Cookery and lengthy periods without enrolment, and I find his explanations as a whole do not provide sufficient explanation for this lack of progress. Overall, I find that his enrolment history indicates that he is using the Student visa programme to circumvent the intentions of the migration programme and to maintain ongoing residence.

3. There is nothing to suggest that the applicant is in a relationship or has entered into a relationship of concern, and I make no adverse findings regarding this factor.

4. As to the factors in cl. 11(e) of Direction No. 69, I note that the applicant has lived in Australia since February 2012 and therefore make no adverse findings regarding his knowledge of living in Australia. I have considered the reasons he gave at the hearing for his enrolment in his current course of study and why he has chosen his current education provider. I have also noted the information he has previously provided for why he wished to enrol in Commercial Cookery and Hospitality Management courses, including the information provided in his GTE statement to the Tribunal, the completed Request for Student Visa Information Form and his prior GTE statement to the Department. I make no adverse findings regarding the applicant’s knowledge of his intended course of study, noting also that he has had enrolments in the Certificate IV in Commercial Cookery since October 2017, nor his knowledge of his education provider.

   Value of the course to the applicant’s future

5. The applicant completed high school in India and does not have any tertiary qualifications from India. Since first being granted a Student visa in January 2012, the applicant has been awarded a Diploma of Management, an Advanced Diploma of Management and an Advanced Diploma of Management (Human Resources). The applicant has not provided any recent documents to support his claims regarding his employment situation, but I accept that he has worked as a taxi driver since January 2017 and has been utilising his qualifications in Management and Human Resources. The applicant claims that he intends to use the Certificate IV in Commercial Cookery and Diploma of Hospitality to either open his own restaurant in India or work as a chef in restaurants owned by friends or relatives. I have considered both the oral and written reasons he has provided for wishing to pursue a qualification in Commercial Cookery.

6. I accept that the applicant’s proposed courses of study are relevant to his stated career plans in India and also accept that although he has previously obtained two Advanced Diplomas in Australia, he is not currently utilising these qualifications. I am therefore prepared to accept that although he is enrolled in courses at a level below of his two Advanced Diplomas, qualifications in Commercial Cookery and Hospitality Management may assist in broadening the potential employment roles that he could apply for in India, as well as expand his business opportunities. While the applicant’s enrolment history in Commercial Cookery courses, which commenced in October 2017 and includes significant periods of non-enrolment, raises concerns about whether he genuinely intends to complete these courses as soon as possible and return to his home country, I make no adverse findings regarding the value of the courses to his future.

   The applicant’s immigration history

7. The applicant’s immigration history refers to both his travel and visa history. As noted above, the applicant was first granted a Student visa in January 2012. He now proposes to remain in Australia at least until 23 April 2024 to complete his current enrolments in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. This will bring his stay in Australia on temporary Student and associated Bridging visas to over 12 years, which is a significant period of time to remain on temporary visas and in itself raises concern about the applicant’s claim to intend to remain in Australia only temporarily for the purpose of his studies.

8. Also noted above, the applicant has made insufficient course progress since May 2016. Since that time, three of his enrolments have been cancelled for unsatisfactory course progress. He has been enrolled in Commercial Cookery courses since October 2017 without successfully completing any courses, despite the short duration of such courses and despite him enrolling in the lower-level Certificate III in Commercial Cookery in 2021. I have also outlined the significant periods for which the applicant has not been enrolled in a course of study since October 2018, which suggest the applicant is in no hurry to obtain his proposed qualifications and return to his home country to take up his proposed business plans. I have also considered the reasons the applicant has given for not making further academic progress, but do not consider these reasons sufficiently account for his lack of successful completion of any courses since May 2016, a period of 6 years.

9. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the length of time the applicant has now spent in Australia on Student and associated Bridging visas, his lack of successful completion of any courses since May 2016 and his repeated re-enrolment in Commercial Cookery courses since October 2017, the Tribunal is concerned that a further Student visa may be used primarily to maintain ongouing residence.

10. For the sake of clarity, I confirm that I make no adverse findings regarding the remaining factors set out in cl. 14 of Direction No. 69. I accept that there is no evidence that the applicant has previously had a visa application refused, a visa cancelled or considered for cancellation. There is no evidence that he has any outstanding applications for other classes of visa. There is no evidence to indicate that he has breached the conditions of his visas. There is no evidence of any adverse immigration or visa history to other countries. However, for the reasons set out above, I have significant concerns regarding the factor contained in cl. 14(b)(iii) of Direction No. 69, and for this reason consider the applicant’s immigration history to be of concern.

    Other relevant matters and conclusion

11. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application

12. Having considered the applicant’s circumstances as a whole, including the applicant’s circumstances in his home country, his potential circumstances in Australia, the value of the courses of study to his future and his immigration history, on balance I am not satisfied that the applicant meets the genuine temporary entrant criterion, in particular because of the serious concerns set out above regarding his immigration history and his potential circumstances in Australia.

13. 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).

14. 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.

15. 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

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

    Frank Russo
    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.