SINGH (Migration)

[2020] AATA 3269

SINGH (Migration) [2020] AATA 3269 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Satwinder SINGH
Ms Ruhani CHANDER
Mrs Ranjana RANJANA

CASE NUMBER:  1928026

DIBP REFERENCE(S):  BCC2015/2759162

MEMBER:Meredith Jackson

DATE:15 June 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 15 June 2020 at 11:40am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court remittal – genuine temporary entrant as student – multiple course cancellations – several changes to Vocational courses – gap in studies – lengthy stay in Australia – proposed aged care business in India – limited academic progress – limited value to the applicant’s future career – maintaining ongoing residence in Australia – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 53
Migration Regulations 1994, Schedule 2 cl 572.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants applied for the visas on 21 September 2015. The delegate decided to refuse to grant the visas on 9 November 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3.    The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4.    The matter is before the Tribunal following the remittal on 27 September 2019 of the decision of a differently constituted Tribunal by the Federal Circuit Court of Australia. The Court found the decision was affected by jurisdictional error in that the Tribunal did not provide the applicant an opportunity to comment on information adverse to the applicant. The primary applicant appeared before the Tribunal on 20 May 2020 by telephone to give evidence and present arguments.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

8.    The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

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

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

(i)the applicant’s circumstances; and

(ii)the applicant’s immigration history; and

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

(iv)any other relevant matter; and

(b)     …

9.    In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

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

·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

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

·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

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

Case summary

1. The primary applicant, Mr Satwinder Singh is a 37 year-old citizen of India who first came to Australia in January 2010 on a subclass 572 student visa valid for the vocational sector. The second and third-named applicants are his wife, Ranjana Ranjana and his eight year-old daughter, Ruhani Chander who was born in Australia in March 2012. Mr Singh has been issued seven Australian visas, two student and five bridging visas in his decade here and has returned to India for brief periods on three occasions. He claims he wishes to run a nursing home in India using his Australian qualifications. His first enrolment on arrival was in a Diploma of Laboratory Technology. He instead completed a Diploma in Dental Technology. He went on to study various vocational courses, in business, nursing and community services. In September 2015, shortly before applying for the visa under review, he enrolled in marketing courses. In February 2020, having not studied since April 2018, he enrolled in an Advanced Diploma of Community Sector Management and secured a letter of offer for a Bachelor of Nursing from Curtin University. He claims his “main objective” is to complete the degree course and return to India

Written and oral evidence considered

1. The Tribunal has considered submissions by the applicant and other documents relating to the review, including:

   a.Delegate’s decision record of 9 November 2015;

   b.Tribunal decision of 27 February 2018 (separately constituted) affirming the delegate’s decision; documents submitted on 27 October 2017 supporting the application for review of 16 November 2015, including but not limited to employment record at Belmont Aged Care Home 2011-2016 and nursing registration certificate for the applicant;

   c.Judgement and Order of the Federal Circuit Court of 27 September 2019;

   d.The applicant’s record in the Provider Registration and International Student Management System (PRISMS) record;

   e.Written submissions of the applicant dated 17 May 2020 providing information regarding the circumstances and outcomes of his review application of 16 November 2015 and the remitted Tribunal decision of 27 February 2018; a written background to his case covering his study and immigration considerations from January 2010 to the present time; genuine temporary entrant claims against Direction 53; claims regarding his long-term intentions; reasons for seeking an offer for a nursing degree course in 2020; legal argument;

   f.Business documents relating to a proposed aged care home in India;

   g.Academic records for specified vocational courses completed and for industry based, non-specified courses;

   h.Confirmations of enrolment and letters of offer relating to past, current and intended courses;

   i.Spreadsheet outlining his reasons for enrolling and/or not studying in courses recorded in PRISMS; various offer documents including from the Technical College of Western Australia;

   j.Departmental and Tribunal files.

2. Prior to the hearing, on 15 May 2020, the Tribunal provided the applicant with a copy of his record in the Provider Registration and International Student Management System (PRISMS) stating that information in the record may be referred to in the hearing. The applicant provided a response ahead of the hearing, which the Tribunal has taken into account. The applicant is currently enrolled in an Advanced Diploma of Community Sector Management (listed first below). The PRISMS evidence below records the remaining course history for the applicant and reflects that he completed five of the other 17 courses in which he has been enrolled since 2010:

(CoE) Advanced Diploma of Community Sector Management 02/05/2020 06/02/2021 (current study)

(CoE) Advanced Diploma of Leadership and Management 12/10/2019 09/04/2018 Inactive

Diploma of Human Resources 10/10/2017 30/09/2018 Cancelled

Advanced Diploma of Marketing [087578E] 30/11/2016 26/02/2017 Finished

Advanced Diploma of Marketing [087578E] 11/04/2016 09/04/2017 Cancelled

Advanced Diploma of Marketing [080241J] 11/04/2016 09/04/2017 Cancelled

Diploma of Marketing [080240K] 07/09/2015 20/03/2016 Finished

Advanced Diploma of Marketing [080241J] 17/08/2015 14/08/2016 Cancelled

Diploma of Community Services Work [075968A] 20/07/2015 01/07/2016 Cancelled

Certificate IV in Community Services Work [075932B] 02/02/2015 26/06/2015 Cancelled

Advanced Diploma of Business [073266C] 28/07/2014 26/07/2015 Finished

Certificate III in Community Services Work [031533C] 21/07/2014 19/12/2014 Cancelled

Diploma of Nursing (Enrolled / Division 2 Nursing) [055233F] 27/06/2014 04/02/2013 Cancelled

Certificate IV in Preparation for Entry into Nursing [065583A] 14/12/2012 23/07/2012 Cancelled

Diploma in Dental Technology (Dental Technician) [064372J] 03/07/2012 30/07/2010 Finished

Diploma of Laboratory Technology [039339G] 27/01/2010 16/12/2011 Cancelled

Diploma of Laboratory Technology [039339G] 14/07/2009 01/07/2011 Cancelled (a duplicated enrolment recorded for the same dates is not included here)

(and)

Diploma of Nursing (Enrolled / Division 2 Nursing) [055233F] 04/02/2013 27/06/14 Finished

The hearing

1. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to the information about him held in PRISMS and explained its relevance to the review in that the information might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal referred to the information, which records chronologically the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal asked questions about the information during the hearing and the applicant was invited to respond. The Tribunal noted the applicant had been sent a copy of the information prior to the hearing and asked the applicant if he had considered it sufficiently or wished to seek further time to consider it. The applicant said he was prepared to comment on the information forthwith and said he understood its significance and why it was relevant to his case.

2. The applicant stated the following at the hearing, which includes all statements made in the hearing in relation to his PRISMS record:

   a.He is currently studying an Advanced Diploma of Community Sector Management that he commenced on 2 May 2020;

   b.He has an offer for a Bachelor of Nursing course from Curtin University starting on 27 July 2020. Completing the degree is essential to him opening a nursing home. He has not accepted the offer because he cannot get an English test before 6 July 2020. He spoke to the University about it and sent them evidence of a test booking, and sought an extension of the acceptance date. The university they once he had his English result they would see if a place was available. If there is no place for him they would put him in the next intake, which would be in 2021, six months later;

   c.He enrolled in his current course, a Diploma of Community sector Management to remain enrolled through the review process; if he passes the English test he will start the Bachelor of Nursing if it is available to him in late July; in such circumstances he would be still be able to finish his community sector course because he has been granted credit for a course he completed in 2017. The Tribunal expressed a concern that he enrolled in the Diploma of Community Sector Management because he was due before the Tribunal, rather than because he needed to do the course. He responded that he wants to abide by immigration law; the Tribunal expressed that he had not been enrolled for extended periods since arriving in Australia and this might cause it a concern that he was enrolling for the strategic purpose of remaining in Australia rather than genuinely as a student. The applicant responded by referring to his enrolments at a college which had experienced registration issues and this affected his enrolments in early 2018; he had supplied an explanation. The last time he studied was April 2018 but it was not until July 2018 the issues concerning his enrolment status were clear. The college was not effective in arranging placement elsewhere. At that time and he enquired of Curtin University regarding a Bachelor of Nursing but there was no place available. After that he “just kept trying on my English”, he did not study formally because he was just trying to get enrolment at various places but he was before the Tribunal and the Court and most of the colleges he applied to saw him as an immigration risk. The Tribunal asked why therefore, he was able to enrol in the Advanced Diploma of Community Sector Management and had an offer for the Bachelor of Nursing. He said after the Court remittal he was able to get enrolment and Curtin were waiting for (this) decision from the Tribunal.

   d.The Tribunal asked whether he had enrolled in the Advanced Diploma of Community Sector Management simply to be enrolled for the purposes of the review. The applicant responded by saying he wanted to be enrolled because he did not want to be in breach of visa conditions. Community sector management was beneficial for him given his plan to open a nursing home.

   e.The Tribunal said the period when he was not enrolled between July 2018 and May 2020 could pose a problem for the Tribunal because he had claimed, but not provided any supporting evidence for his claim, that his immigration status was the cause of him being unable to secure enrolment. He responded that sometimes colleges would just tell him on the phone they couldn’t enrol him because he was before the Court. He did not get that in writing from anyone.

   f.The Tribunal questioned the applicant as to why he had chosen this current course when he was intending to study nursing in July if he passed English, because it seemed unlikely he could study both courses at once. He said he was confident he would pass his English test on 6 July and could also complete his current course, because he has credit transfer for previous study towards the course so he only has “two or three units” to complete.

   g.There was a thread to his overall study record which lay in the various skills he needed to run his nursing home; for example, he needed marketing skill to run a business. The Tribunal said it seemed odd that he had enrolled in dental technology, laboratory technology, community service certificates, business courses and marketing courses, and then ten years after he arrived in Australia, decided to do a Bachelor of Nursing. The applicant responded that in that ten years he has only held a student visa twice, and he was before the Tribunal and the Court the rest of the time. He had applied for nursing before, but the university (Edith Cowan University) said he was an immigration risk. So that was out of his control.

   h.His daughter was born in Australia and he and his wife are his only family here. He had gone back to India for visits “two or three times” in that time, he thought that was in 2014 and 2015. The Tribunal noted he had spent 10 years in Australia, and made a very large investment in education and living expenses, perhaps $300,000, to gain five vocational qualifications. He responded that he had to invest in education if he were to have a good future, that is why he needed to do a nursing degree, otherwise the estimated $300,000 would be wasted.

   i.In response to the Tribunal asking what his return on that investment would be, the applicant said he would get an annual return of 12 per cent on his investment in the nursing home. Study undertaken in Australia was about acquiring essential knowledge for his business.

   j.He did not study in India to get the knowledge to start a nursing care business because he needed to understand Australian standards. Despite it being regarded as a female profession, he would work as a nurse in India because he would own the business and could do so. Or he could employ nursing staff.

   k.In response to the Tribunal asking why if opening a nursing home was his plan all along, he had started out in courses such as laboratory technology and dental technology. The applicant said he was not happy with those courses and the limited opportunities they provided, so he turned to nursing study. He completed his study as an enrolled nurse at TAFE in June 2014. He had been granted credit for that of one year towards the Bachelor of Nursing at Curtin.

   l.His other family were all in India, his parents and siblings. The family had a shop in which he had an equal share with his parents along with agricultural land and other assets such as gold. The assets were worth around $AUD 400,000-500,000. He could not provide evidence of them because of COVID-19 difficulties. There were no reasons why he could not return to India. He definitely intended to go back there, India was his country.

   m.The Tribunal questioned the applicant regarding his potential circumstances in Australia, and whether there were strong incentives to remain here with his family after more than 10 years of living here, which could suggest he was using the student visa program to remain in Australia. The applicant responded by saying Australia was very expensive and it would be illogical to stay here. He just wanted to complete his Bachelor of Nursing. He did not want to lose the estimated $300,000 he had invested. He had a bright future in India. He would not apply for jobs in Australia as a nurse for $60,000, when he could make more than that in India if he owned his own business. He expected to earn $250,000 a year in India, as that would be the business’ annual profit. He would be sole director so he would draw all profit for himself. He might take five to six years to get to that level of profitability.

   n.He had not applied for visas in other countries and had not been refused visas in any other country. He had not travelled to countries other than Australia. He is currently a part-time Uber driver.

   o.He acknowledges he has been in Australia for 10 years but he has only been granted two student visas, and the rest of the time has been spent in reviews.

3. The applicant’s representative commented towards the end of the hearing, as follows:

   a.A male nurse was not a recognised function in India. The applicant’s business plan made clear he would be the sole director of the aged care facility and his nursing knowledge would allow him to hire skilled and unskilled staff and avoid the costs of trainers. The business opportunity in a developing country was such that his business would be relatively profitable in India whereas he would earn a modest salary as a nurse in Australia. He had invested heavily in education, as the Tribunal had suggested, and he wanted to complete nursing and take advantage of his education. Curtin University had written to ask him about the outcome of his Tribunal review. He was being hampered by circumstances beyond his control.

Conclusions and findings

1. The Tribunal has considered the applicant’s submissions and considered his circumstances in his home country, potential circumstances in Australia, and the value of the course to his future; has considered the applicant’s immigration history and other relevant information provided by the applicant and information otherwise available, including information that may be either beneficial or unfavourable to the applicant in accordance with Direction 53. The Tribunal concludes the following.

The applicant’s circumstances in their home country

1. Direction 53 asks the Tribunal to consider the applicant’s circumstances in India. The Tribunal notes that he has not been resident in his home country since 2010. In the more than 10 years that he has spent in Australia, he has visited India for only three brief periods. He claims his “main objective” is to complete a nursing degree in Australia and return to set up an aged care facility in India, which he would operate as its sole director. He claims there is significant opportunity in India in the aged care sector, and that a nursing degree would allow him to competently hire skilled and unskilled staff and avoid the costs of trainers. He has provided a somewhat detailed business plan for the venture. He claims it will produce an annual profit, from the early stages of the business, in the vicinity of $AUD 250,000. As sole director, he would allocate the whole of the profit to himself rather than draw a salary from it. To set the business up, he will leverage the shares he has in agricultural and other assets with his parents in India. He states that his “whole family” is in India and it is his home, to which he has always intended to return.

2. The Tribunal has considered the applicant’s circumstances in India as he describes them and accepts that he has prepared a broad business plan for an aged care facility for which he sees an opportunity in an emergent economy. The Tribunal has not attempted to verify the plan’s financial metrics or confirm whether the applicant will be able to realise it with the resources he has described. He has not provided convincing supporting evidence to that effect. However after questioning the applicant at some length about his ability to run such a business without any experience, and after 10 or 12 years as a student, the Tribunal was not satisfied the business is reasonably going to deliver the outcomes he envisages. The Tribunal put to the applicant whether a start-up business such as he proposes would have the potential to produce an annual profit of the scale he claimed at hearing ($ AUD 250,000), particularly if he draws all profit annually for his personal use. The applicant acknowledged in the hearing that it may take a while, perhaps five or six years, to reach the profitability he envisages, but he considers his plan to be viable. When the Tribunal put to the applicant that he has not run a business of such scale before, he has been a student of vocational courses for 10 years and proposes two more years studying nursing, the applicant said he believed that the business would reach the proposed level of profitability in several years. The Tribunal notes the confidence of his claim, but on the evidence before it, which is supported primarily by a business plan he has drawn up himself, it is not satisfied his nursing home project provides sufficient incentive for him to return to India.

The applicant’s potential circumstances in Australia

1. As stated earlier, the applicant has been in Australia for more than a decade. His wife, secondary applicant Ranjana Ranjana, and his eight year-old daughter Ruhani Chander, who was born in Australia in 2012, live with him in Australia. He came here to study in the vocational sector and applied for the visa under review to continue to study, at that level, although he claims to now have an ambition to study at Bachelor degree level. The Tribunal notes that the acquisition of a Bachelor of Nursing would increase his employability as a nurse and potentially offer him a pathway to permanent residency. He has worked while in Australia and works now: he provided evidence that between August 2011 and June 2016 he worked as a personal carer in a nursing home and he told the hearing he currently works as a part-time Uber driver. He claims he has long wanted study a Bachelor of Nursing, but immigration circumstances stopped him. The Tribunal notes that in the 10 years that he has been either the holder of a student visa or has had a Bridging visa, he has had significant gaps in study, most recently for approximately two years prior to enrolling in a vocational course in the month before the. Each of these visas allowed him to study. He has provided no evidence to support his claim that he was rejected by a number of colleges and universities on the basis that he was an immigration risk.

2. The Tribunal notes that the applicant appears not, as he claims, to have prioritised a Bachelor degree in nursing as: since arriving he has enrolled in fields including laboratory technology, dental technology, nursing, community services (non-award courses), business, marketing, human resources, leadership and management and now community sector management. He claims that this study record all adds up to a coherent whole, in that with the exception of the first courses in laboratory and dental technology, the courses all contribute to his plan of opening a nursing home. The Tribunal notes the claim of coherence and accepts that some of the knowledge he has acquired may be useful to such a venture,  but is not satisfied his record accounts for why he has studied at such a slow pace for a decade if he had a plan all along. A total of five completed, relatively short, low-level courses is not a strong outcome for a ten-year investment in study. The Tribunal put this to the applicant in the hearing, stating its concern that while he claims there is a serious plan for a nursing home, the applicant may alternatively be simply using the student visa program to extend his stay in Australia. He responded that this is not the case; arguing that he has always studied when he could, but the immigration and appeals processes, provider registration issues, and now COVID-19 have limited his progress. The Tribunal acknowledges the applicant’s candid statement that his current course was entered into as a means of ensuring he was enrolled at the time of the hearing, and this was because he did not want to fail to “abide by the law”, which is taken to mean he did not want to be without enrolment at the time of decision because it may negatively affect his chances. However taking all into account, particularly the length of his stay in Australia and his modest educational attainment over the period, the Tribunal considers that the applicant is seeking to extend his stay in Australia and has contrived the enrolment his current course, and potentially his application for a nursing degree, for the purposes of the review and further stay. His explanation for studying his current course is examined in further detail in paragraphs [23-27] below.

3. The applicant claims his circumstances in Australia do not match his opportunities in India. He argues that working in Australia as a nurse would yield him $60,000 instead of the $250,000 annual profits from his business that he will draw in India. He considers outgoings in Australia to be high compared with India. The Tribunal notes however that the applicant and his family have managed to live on in Australia for more than 10 years and are intent on staying a further two years while he studies a nursing degree. The applicant and his family have demonstrably met their education and living costs throughout the period to date. The Tribunal does not accept that the applicant’s future employment opportunities in Australia as a degree-qualified nurse are as low in value as he suggests, rather, the Tribunal considers they provide him with a significant incentive, that is, to earn sufficient income to live a comfortable life with his wife and Australian-born child, in Australia.

Value of his current course to the applicant’s future

1. Direction 53 asks the Tribunal to consider the value of the current course to the applicant’s future. The applicant’s current course is an Advanced Diploma of Community Sector Management. The Tribunal finds its value to the applicant’s future to be marginal for the following reasons.

2. Since arriving in Australia more than 10 years ago, as described earlier in these reasons, the applicant has studied a wide range of vocational courses that he claims are coherent and relevant to his plan to establish an aged care business in India. He states he has long wanted to add a Bachelor of Nursing, but because of an ongoing appeals process, has been forced to remain at vocational level or, in relation to his lack of enrolment since 2018, not study at all. He began studying the Advanced Diploma of Community Sector Management in May 2020. It is a nine-month vocational course. He stated in the hearing that he enrolled in the course because he wanted to be enrolled at the time of review and avoid breaching immigration law. He claims he could be studying the nursing degree course by now, but because he could not get an English language test until 6 July 2020 to satisfy a prerequisite, he has been unable to accept an offer from Curtin University. He states that if he passes the English test, as he believes he will, he will seek to be accepted into the degree course starting in late July. The Tribunal notes that in late July, he will still be enrolled in the Advanced Diploma.

3. The Tribunal spent some time in the hearing trying to clarify how the applicant could hope to complete a nine-month advanced diploma course and yet be ready to enter nursing in late July, given he only started the former in May. The applicant’s answers were vague and unconvincing. He eventually clarified, after repeated questioning from the Tribunal, that he had received extensive credit towards the advanced diploma from previous studies in the same field, and therefore he had only “two or three units” to go, so he would not need to study it for long. At the end of questioning, the Tribunal was still not clear whether he proposed to study the courses in tandem, to try and complete the first course in a matter of weeks, or to try and defer his nursing enrolment until 2021. The Tribunal was left with the impressions the applicant has not thought this through. The applicant argues, as he does for most of his past enrolments, he can justify the course because he will need, in this case, community sector management knowledge for his business. The Tribunal notes he appears to already have a significant amount of such knowledge, given the amount of credit for his previous community studies he claims to have received, to the point of having only “two or three units” to complete. The Tribunal concludes the course is not of high value to the applicant’s future, and that he has enrolled in it for the purposes of filling an enrolment gap ahead of the hearing.

4. In examining of the value of the proposed Bachelor of Nursing to the applicant’s future, the Tribunal notes the applicant’s claim that the completion of a Bachelor of Nursing is essential to his future plan to open an aged care facility. He states that his large investment of time and funds in Australian education will be “completely wasted” if he does not complete a nursing degree. He states that if his English result required for his nursing degree is too late to secure a place in nursing at Curtin University in July, he might defer nursing studies to a 2021 intake. In the light of his background of slow-paced, low level and multi-field study history, the Tribunal has a concern about this, in that it tends to suggest he is not as pressingly committed to completing the degree and returning to India to start a business as he claims, otherwise he would logically skip the community sector study in favour of a July 2020 start in nursing. While the Tribunal accepts that a Bachelor of Nursing may be a useful knowledge set for any student preparing for their future, it is not satisfied on the evidence before it, that for the applicant it is not now, nor has it always been, an essential or central step in an overall academic plan that leads to a future in aged care entrepreneurship. The applicant’s record in PRISMS appears to support this. The record, forwarded to the applicant before the hearing, and which he was given ample opportunity to comment on, and did both before and in the hearing, shows he has studied successfully for approximately half the time he has been here, even allowing for industry based, non-specified training he has completed or attended. He has been enrolled in 18 specified courses over a decade and completed five of them. He states that he been unable to control this; that his record reflects a system wary of students undergoing visa reviews and difficulties with provider registration and course transfers that required some enrolments to be cancelled. He claims that he has done his best to be a consistent student. The Tribunal acknowledges that he has experienced delay, rescheduling or cancellation of some courses over a decade. However, even allowing an element of wasted study time, the applicant has not satisfied the Tribunal that such factors fully explain a 10 year academic outcome consisting of five relatively short, low-level vocational courses, or that his performance is entirely the fault of circumstances beyond the applicant’s control.

The applicant’s immigration history

1. The applicant gave evidence he has not applied for any visas other than Australian student visas, in any country including Australia, and has not been otherwise refused visas or travelled beyond Australia and India.

Overall conclusion

1. After considering the applicant’s claims separately and together and with regard to the specifications of Direction 53, the Tribunal concludes that the applicant is using the student visa program to extend his stay in Australia.

2. The Tribunal finds the applicant does not intend genuinely to stay temporarily in Australia.

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

4. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

Secondary applicants

1. As the first named applicant does not meet the primary criteria and the secondary applicants applied solely as the nominated dependants of the first applicant, it follows that the secondary applicants, Ms Ruhani CHANDER and Mrs Ranjana RANJANA do not meet the secondary criteria.

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

Meredith Jackson
Member