Singh (Migration)

Singh (Migration) [2018] AATA 4322 (18 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurminder Singh
CASE NUMBER:  1500869
DIBP REFERENCE(S):  BCC2014/2333148
MEMBER:Karen Synon
DATE:18 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 18 September 2018 at 2:18pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Sublcass 572 – Genuine temporary entrant – 8 years in Australia – Unsatisfactory course progress and study achievement – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(a)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied to the Department of Immigration for the visa on 16 September 2014. The delegate decided to refuse to grant the visa on 5 January 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).
Where used in this decision:
a.COE refers to Certificate of Enrolment in a course of study;
b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;
c.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application.
The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because s/he was not satisfied that the applicant genuinely intends to stay in Australia temporarily. When applying for review, the applicant provided a copy of the department’s decision to the Tribunal.
The visa application form records that the applicant applied for this student visa in order to complete a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality.
The primary decision contains the following relevant information in relation to the applicant circumstances in Australia noting the applicant was enrolled in following courses of study in Australia:
English for Vocational Education (Upper Intermediate) (ELICOS from 14 January 2008 to 4 April 2008 – completed. Total duration of study = 81 days
Diploma of Hospitality Management from 7 April 2008 to 12 June 2009. Applicant has advised he completed the study, however did not pass. Total duration of study = 431 days.
Certificate III in Hospitality (Commercial Cookery) from 5 August 2009 to 18 September 2010. COE cancelled 25 March 2010 for non-payment of fees. Last day of study recorded by the education provider 12 March 2010. Total duration of study = 219 days
Diploma of Management from 1 October 2009 to 1 October 2010. COE cancelled 4 September 2009 as applicant to commence course in 2010.
Diploma of Business from 12 April 2010 to 12 April 2011. COE cancelled 6 May 2011 for non-commencement of studies, as applicant failed to re-enrol.
Diploma of Management from 1 October 2010 to 1 October 2011. COE cancelled 8 April 2010 for non-commencement of studies, as applicant changed to another provider.
Diploma of Tourism from 5 May 2011 to 30 March 2012. COE cancelled 6 August 2011 a applicant failed to re-enrol for term 3/2011. Last day of study recorded 1 July 2011. Total duration of study = 339 days.
Diploma of Tourism from 8 August 2011 to 30 March 2012. COE cancelled 12 May 2012 as applicant failed to re-enrol for tem 2/2012. Last day of study recorded 8 April 2012. Total duration of study = 224 days.
Advanced Diploma of Tourism from 16 April 20121 to 15 April 214. COE cancelled 7 December 2013 for non-payment of fees. Last day of study recorded 28 November 2013. Total duration of study = 591 days.
The applicant is now proposing to undertake the following study in Australia:
·Certificate III in Commercial Cookery from 8 October 201 to 21 October 2015
·Certificate IV in Commercial Cookery fro, 9 November 2015 to 11 June 2016
·Diploma of Hospitality from 18 July 2016 to March 2017.
The primary decision goes on to record:
The applicant has provided a statement advising he has completed 33 units out of the 43 units required for the completion of the Diploma of Hospitality Management at Carrick Institute of Education in 2009, and is now proposing to finish this study. Our records indicate the applicant has resided in Australia for a total of 6 years and 224 days, with a total of 17 days outside Australia since his initial arrival on 20 January 2008 as a Student visa holder. During this period of residence, the applicant has completed 5 years and 60 days of study resulting in the highest non award qualification of English for Vocational Education (Upper Intermediate) (ELICOS). In consideration of the length of time the applicant has resided in Australia without any progression in the level of study since he completed the non-awarded course of ELICOS was in April 2008, this raises serious concerns about the applicant’s genuine intent to study and complete the proposed qualifications, therefore I cannot be satisfied that the applicant’s expressed intention to study is genuine. I give strong weight to the applicant’s circumstances…
On 14 January 2014 the applicant lodged a further Onshore Class TU subclass 572 Student visa application as member of the family unit and was granted the visa on 17 January 2004 until 15 March 2016. On 3 September 2014 a Notification of Intention to Consider Cancellation (NOIC) was issued to the applicant to cancel this visa, as he was no longer a member of the family unit of the principal Student visa holder. On 16 September 2014 the applicant lodged this Student visa application, being 13 days after receiving the NOIC. On 17 December 2014 Department cancelled the applicant’s Student Visa under section 116 of the Migration Act, as a circumstance which permitted the grant of the visa no longer existed. On 23 December 2014 the applicant lodged an appeal with the Migration Review Tribunal regarding the decision to cancel a student visa. I find that in the applicant’s decision in applying for this Student visa within 13 days of receiving the NOIC has demonstrated the only decided to undertake the study in Australia as means to maintain ongoing residency in Australia. I give strong weight to the applicant’s immigration history.
A submission provided to the Tribunal before the hearing relevantly contends:
The applicant arrived in Australia in January 2008 aged 21 to study a English for Vocational Education course followed by a Diploma of Hospitality Management course. He completed 33 of the 43 units of his diploma.
He later enrolled for the following courses but did not complete them:
Certificate III in Hospitality (Commercial Cookery) – COE cancelled
Diploma of Management – COE cancelled
Diploma of Business – COE cancelled
Diploma of Management – COE cancelled
Diploma of Tourism – COE cancelled
Advanced Diploma of Tourism – COE cancelled
While doing his ELICOS course he fell in love with a Nepali girl and did not pay attention to his studies. He was not allowed to marry this girl and forced by his parents to marry a girl from his culture and caste. He returned to India to get married. After returning to Australia he applied for his wife to be a dependent on his student visa. She arrived in Australia in October 2012.
His wife constantly urged him to allow her to enrol at university and forced the applicant to apply for a student visa for her however neither the applicant nor his family were financially capable of paying two international students fees. It was decided that when his wife completed her studies, he would start. Her visa was granted on 17 February 2014 and life went smoothly however his wife left him at the start of the first semester and informed the department that she had ceased to be an ongoing relationship either as a spouse or de facto of the applicant and therefore the applicant ceased to be a member of his wife’s family unit.
On 16 September 2015 the applicant applied for a student visa. This was refused on 5 January 2015.
The applicant came from a very narrow minded conservative family and the open environment of Australia and his young age were factors that contributed to wrong decisions and a regular change of mind. The applicant admits he did not value his study time and money. He is now 29 and regrets his decisions. The applicant had no knowledge at the time he made the decision to change of visas (on the advice of an education agent) of the legal implications. He was ditched by his spouse who used him as means to come to Australia. He was the innocent victim of a carefully planned and executed strategy to threaten his studies and status in Australia. Experience is his best teacher and the past 8 years have left an impression on him and transformed him. He commenced studies again in October 2014 and has completed his Certificate III in Commercial Cookery. He is currently studying his Certificate IV as part of his training plan. He pays his fees regularly and has maintained his attendance record.
The applicant has transformed and is serious about his career, studies and gives value to time. He is now a genuine student. After he completes his Diploma qualification he will go back to India. He has a clear plan to have his own Australian restaurant in Chandigarh. There are a number of examples that graduates from Australia have opened their business and earned millions.
He has done research work and expects India’s food industry to double in size between 2013 and 2016 to $1.2 billion according to the Economist Intelligence Unit and demographic trends mean it could become the next mega-market for international food players. India’s population stands at 1.2 billion, but it has only a little over 2,700 chain fast food outlets leaving most people unreached according to Euro Monitor International.
Also provided were a range of documents including, relevantly, evidence of the applicant’s successful completion of the Certificate III in Commercial Cookery and a letter from Salford College confirming his enrolment in the Certificate IV in Commercial Cookery. He also provided a COE in relation to Diploma of Hospitality which will conclude on 13 March 2017.
Also provided to the Tribunal by the applicant was a copy of his visa cancelation decision of his previous student visa under section 116 notifying the applicant that this was cancelled on 17 December 2014 and he had been notified on 3 September 2014 of the intention to consider cancellation of his visa. The applicant’s visa was cancelled because a circumstance which permitted the grant of the visa no longer existed.
The applicant appeared before the Tribunal on 17 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Sanskruti Patel and Gaurav Antwal, both personal friends of the applicant. The hearing was conducted via telephone with the applicant and witnesses in South Australia.
The applicant was represented in relation to the review by his registered migration agent. She did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.
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) …
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.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has had regard to the following matters in considering whether it is satisfied that the applicant intends genuinely to stay in Australia temporarily. It discussed with the applicant at the hearing a range of matters arising from Direction 53 and raised with him a number of concerns arising on the evidence before it.
He first arrived in Australia in January 2008 aged 21 on a 572 visa to study an English course and a Diploma of Hospitality Management. The highest education he achieved in India was year 12 in 2005 and then he stared a short computer course that he finished in about 8 months. He received a certificate for that. He was not employed before coming to Australia.
He enrolled to do the Diploma of Hospitality Management because all his old friends were doing hospitality management In Australia and so he told his parents he wanted to study the same course. Asked again why he wanted to do it the applicant said he was very young and his family has land on a highway and were always thinking of opening a restaurant on the highway. His friends advised him to do hospitality management and commercial cookery. Asked why he could not study these courses in India the applicant said in India he looked for so many opportunities but it was always his dream to study in Australia. He did not look at any courses in cookery or hospitality in India; he was so young at the time. When asked again why he not consider any cooking or hospitality courses offered in India the applicant said he just followed his friends and at that time, Australia was the big cookery and hospitality trainer and he wanted to study overseas.
Asked why he did not complete his diploma in hospitality management, the applicant said it was because he had fallen in love with a lady from Nepal and it was his first love and he was not serious about study at that time. He said he was so young at that time.
The applicant agreed that the courses listed in the delegate’s decision on page 3 (and as detailed above at paragraph 6) are a correct record of his study history in Australia except that he does not agree with the fourth entry (Diploma of Management COE cancelled on 4 September 2011) because he did not take enrolment in that course.
In the over 8 years he has been in Australia he has successfully completed a Certificate III in Commercial Cookery at Salford College on 8 October 2014 and a 3 month English course. In the previous 7½ years he did not successfully complete any other courses. He is currently studying his Certificate IV in Commercial Cookery.
The applicant wants to study these courses because he learnt from his bad time and he lost everything; his 8 years; his wife. It was his dream to study hospitality. His family has land and they want to start a restaurant. He has always wanted to do this. He wants to finish these courses urgently.
Asked what specifically these courses will allow him to do, the applicant said he is learning a lot; how to follow recipes; and how to manage a business and this will help him a lot because he wants to cook western food in India and he has to follow the recipes (they don’t follow recipes in India). He also leant a lot of things from his 3 month unpaid placement at the hotel Maid and Mag.
Asked what he intends to do on his return to India he said he plans to open a restaurant on land on a highway. He has a plan in mind. It has no buildings yet but is approved for commercial purpose and is 2 kilometers from the city. His father will sponsor him to build this restaurant because they also had a dream about this restaurant. It will serve western food because they are no western food restaurants in his city of Nawansharar which is bigger now and has a population of more than 500,000 people.
The Tribunal asked the applicant to detail exactly what he planned to do when he returned to India and how these courses would help him, the applicant said the course will help him to know how to manage the restaurant and to build a western style kitchen with ovens etc which he has seen a lot of here. The course has helped him with cooking skills and learning the new dishes. His father will help him to make Indian style food.
Asked how specifically he had researched and planned the restaurant, including the estimated cost of the fit out, menu development etc, the applicant said the land is free and the family will give him that. The building cost will be approximately 20 Lak and his father will retire and help him run the restaurant. He has a plan in his mind but it is not written down. It will be a mix of Indian and Australian food and will be poultry (because beef is not allowed in India) and will include chicken schnitzel and pasta. It will have seating because no one buys take away food in India. Asked for additional information about his planned restaurant the applicant repeated that he has the land on which it will be built, his family will sponsor it with finance, he will set up an open plan kitchen with a deep fryers, ovens etc.
The Tribunal asked the applicant about the research he claims to have done on The Economist Intelligence Unit and how he found out about this research. The applicant said he looked on the internet about that research because he has not been to India since then and it was just a search on the Indian food industry from 2013 to 2016. The applicant did not know the title of the article and could not explain how he sourced it. He said the research said a lot of Indian people are going to start liking the western food but there are only about 2,700 food chains that have western food for people who will have money to spend on this food. He repeated that he found this on the internet. Asked about the research quoted in his submission from the Euro Monitor International the applicant said it is an agency who does research on different surveys. Again he found it on the internet when researching the question ’what people think in India about western food’ and these results were “deep inside”. He also has friends in India who he talks to all the time who say they are planning to open a fast food chain in India and he got the idea from them.

Both his parents live in India. His sister will soon depart for the USA where she will be married. He is the only son. His father is an electrician foreman but will soon retire. His mother is a housewife. He has no other family in Australia. In Australia the applicant lives with his 2 friends. They came to Australia together. When he was living with his wife they lived with his 2 friends. The applicant is not yet divorced because he has to return to India to get divorced. They separated on 10 July 2014. He does not have a girlfriend or fiancée in Australia or India.
The applicant was employed in Australia at the Sydney Vegetable Market from 2009 until July 2014. He worked there, on average, 20 hours a week. He has not been working in Adelaide because he had to find a job and was working to get his taxi licence which he now has. He has not worked in hospitality or a restaurant since arriving here. The applicant has no savings in Australia and no other assets here other than his car. He has no savings in India. He has no other assets in India; just his family.
The applicant's original intention/plan in coming to Australia was to just study his Diploma of Hospitality Management and his Certificate III and IV and go back to India. He thought he would be back there in 2½ years.
Since arriving over 8 years ago the applicant has only returned to India once for less than 3 weeks because his family was very upset because he has a Nepalese girlfriend so they forced him to go back. He was upset with his family about his relationships. Asked why he did not go back to India after his relationship broke up, the applicant said his visa was refused and he was not able to travel. He did not know he could have travelled and he wanted to study. The Tribunal noted that it maintained concerns that in over 8 years he has only been back to India once for 3 weeks in 8 years and that this suggested he had stronger ties to Australia than to India. The applicant repeated he did not know he could go to India.
The applicant has no job offers at the present time although if offered a job in Australia would be happy to take it; only up to 20 hours a week. He would not take a permanent job because he has to go back to India to look after his mum and dad because he is the only son. The applicant has no job offers in India at the present time although if offered a job in India he would 100% take the job, after he finishes his study, and he would be looking to get experience for example in a Taj hotel.
Invited to explain why he has not progressed in his intended studies in the over 8 years he has been in Australia the applicant said he started his Diploma of Management but in 2009 met a Nepalese girl and fell in love. His mum came to Australia at the end of 2010 because he told his mum he wanted to marry this girl but his mum was very upset and his relationship between his mum and his girlfriend was very bad so he did not concentrate on his study. After that, his family pushed him to go to India to get married. The Tribunal noted that was the end of 2010 and he had been in Australia 2 years by then and asked what he had achieved during those first 2 years. The applicant said that during this time he was trying to convince both his mum and his girlfriend. In March 2012 his mum asked him to go back to India to get married. This was organised by his family. He went back to India and his family organised a reception and he did not know he was going to get married at that time so was very upset. He was married 2 days later. He came back to Australia on 15 March. His wife wanted to come to Australia and they applied for a dependant visa which was granted in October 2012. She wanted to do an English course in December but he did not want her to do that because his family only had enough money for one international fee. She finished the English course in March 2013 and decided to take the pathway to nursing in Adelaide. She went to Adelaide before him and studied a nursing degree at Flinders University. She asked for the fees to start her nursing but, at the time, he could not afford it because he was studying an Advanced Diploma of Tourism. He did not finish this course because he had to give it up because his family could not afford 2 international student fees.
Invited to explain all the gap periods in his study the applicant said it was because he was in a relationship with a girl and then he got married to another girl and that is why he was very stressed. That is why he never studied; his family was upset and his girlfriend was upset. He got married without any plan to marry.
Invited to add anything else the applicant said he knows what direction he is heading to make a successful career and, at age 29, he cannot change his study plan; he has no career and is not successful. He is the only son and has to look after his parents. Asked why he enrolled in 3 different tourism courses if all he ever want to do was cookery and hospitality the applicant said it was because when he was doing his Certificate III and IV he paid his fees to an agent but the agent did not pass it on his college and so he had to see another agent who was offering him different courses. Asked again why he changed his study and career path to tourism the applicant said he followed the agent who offered him different courses and did not think about it.
The Tribunal took oral evidence from Ms Sanskruti Patel, a personal friend of the applicant who has been sharing a house with the applicant since 2008 and introduced him to the Nepalese girl who was her friend. In summary Ms Patel said it was a cultural thing and in 2010 his mother and her mother-in-law came together and his mum said to her mother-in-law ‘if my son will marry this girl, I will definitely die and I don’t know what is happening with his life and he is not doing anything’. When the applicant was supposed to go to college he was staying home trying to convince his mother to let him marry this girl. It was strange he then married a girl he did not know and she was an irresponsible girl. Two days after she came to Australia as his spouse she was telling her that she wanted to do an English course because she found she could not communicate here. She did the English course and made friends who were about to do other bachelor courses and then she said she wanted to do her bachelor of nursing here. So the applicant asked his parents because they were providing the financial support but his parents were “quite agree and quite not”. Between 2008 and 2014 the applicant was quite trapped and very stressed but now he is a transformed person and wants to study and this is what he is focussing on at the moment. At age 29 it is too awkward for him to study in India. The applicant’s ex-wife probably came to Australia with a view to living here.
The Tribunal took oral evidence from Mr Gaurav Antwal, a personal friend of the applicant and the husband of Ms Sanskruti Patel. In summary Mr Antwal said that applicant is transformed from what he was before. He has been through a lot of pain; he came here at an early age, got involved in a relationship and got into a lot of trouble “with the culture and all that”. His mother did not support him and said he had to get married to this girl and he has been through a lot. He needs to be allowed to finish his studies. He wants to finish and after that he is happy to buy a one way ticket and go back and start his own business. There is no way the applicant is going to stay here because he is the only son and he has to go back as his sister is about to go to the US with her husband. He has done everything in Australia legally and just wants to stay here legally to do his studies.
Invited to comment on evidence of the witnesses the applicant said he is just requesting to be able to complete his study in Australia. He does not want to stay here.
The Tribunal noted that the department’s decision records “on 16 September 2014 the applicant lodged this student visa application, being 13 days after receiving the NOIC” and the delegate’s finding that “the applicant’s decision in applying for this Student visa within 13 days of receiving the NOIC has demonstrated that he only decided to undertake further study in Australia as a means to maintain ongoing residency in Australia” and invited the applicant to comment on this. He said he already had a COE (issued on 13 August 2014) before that and was waiting for his parents.
The Tribunal asked the applicant why, if his wife left him in July, he did not immediately report this to the department. He responded that his family in India was trying to sort out the problem with her family because it was an arranged marriage and he was waiting for them. Noting that the delegate gave significant weight to his immigration history the Tribunal invited the applicant to comment on this. The applicant said that he could not do it because he could not concentrate on study at that time.
Invited to comment on any other matter raised or finding made in the department’s decision the applicant declined the opportunity to do so. Invited to comment on any of the matters and circumstances in Direction 53, a copy of which had been sent to him the applicant declined the opportunity to do so saying he had already said what he wanted to.
The Tribunal discussed with the applicant its concern as to whether it could be satisfied that he is a genuine temporary entrant in light of: arriving in Australia over 8 years ago and only completing 2 courses, one of which was a vocational English course, and therefore his overall unsatisfactory course progression and study achievement in Australia and the fact that in over 8 years he has been here he has only returned to India once for less than 3 weeks thus undermining his claims that he intends to return to India after the completion of his diploma. The Tribunal noted that these two significant circumstances raise concerns that he is using the student visa program to maintain residency in Australia. The applicant responded that he is not getting a visa to stay in Australia or to get a better life here but is now sure of what he is doing and asked that he at least he allowed 6 months to finish his Certificate IV and go back to India with at least some qualifications in commercial cookery because it will be very hard to go back at age 29 without any qualifications.
During the hearing the Tribunal also expressed its concerns about the relevance of his current courses to his stated intention of opening a western restaurant in Nawansharar[1] given his inability to explain to the Tribunal’s satisfaction any sound research or thought out approach especially given his evidence that he has had this idea for over 8 years. Invited to respond or comment the applicant declined to do so.
[1] Or Chandigarh as stated in the representative’s submission.
The Tribunal also noted its concerns that the applicant appears to have sought enrolment in several unrelated courses over the years including hospitality, management, business and 3 courses in tourism. He responded that his Certificate III and IV are related to what he wants to do which is starting a restaurant in India. He did tourism courses on the agent’s suggestion and also his student visa was about to expire and he needed to stay enrolled in a course. He checked with other education providers and they were not running the course so he had to stick with that.
Invited to make any final comments or submission the applicant said when he came here it was to do hospitality management and if he does the Certificate III and IV he has to have these 2 courses to make his future. He has already wasted 8 years and if he goes back to India he has nothing. He is doing really well in the Certificate IV and is now a genuine student. He tried his best before but he was in stress and could not. Asked if during all the years he was stressed and not coping with his study he ever saw a student counsellor doctor, the applicant said he did not. He knows he made so many mistakes in Australia but things were not in his control and now he is transformed and has completed his Certificate III and is doing his Certificate IV and he will be successful. At age of 29 he cannot study in India because he would be studying with teenagers. He wants a visa just to finish his qualifications.
After carefully considering the applicant's evidence and the matters above, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily. The applicant is now aged 31 and came to Australia in January 2008 when he was aged 21. At the time of this decision he has been in Australia for over 10 years; a period of time the Tribunal considers to be extremely lengthy to stay in another country and defer the commencement of his working career given his evidence that he intends (and always intended) to return to India to start a restaurant and, initially, he only intended to stay in Australia for 2½ years to complete his Certificate III and IV and Diploma of Hospitality Management.
The Tribunal has serious concerns about the applicant’s study history, lack of course progression, study intentions and the value of the proposed courses to his future in India and discussed these concerns with the applicant at the hearing as detailed above.
In weighing the applicant’s circumstances in India and Australia the Tribunal accepts he is the only son of his parents who both live in India however the evidence given is that he lives in Australia with 2 close friends who he has lived with for over 8 years, including when he was living with his wife and that he came to Australia with these friends, and, in the very significant time the applicant has been in Australia, he has managed to maintain his relationship with his parents from a life lived in Australia. Therefore, while the applicant has family ties to India, he also has strong ties in Australia. Further, at the time of the hearing, the applicant had resided in Australia for over 8 years and only left Australia once for 3 weeks to get married. The applicant's history of travel does not indicate that he has a strong incentive to return to India or that his family ties in India provide incentive for him to return there. In making this observation the Tribunal has considered the applicant’s explanation for this being that he thought he was not able to travel after his visa was refused and he wanted to study however it was usually been open to him to travel between courses and to seek a bridging visa that allowed him to travel and return to Australia during the course of his review should he have wanted to do so and, despite the applicant saying he wanted to instead study, he has a very poor study completion record in his lengthy period in Australia. On the evidence provided, the Tribunal is not persuaded that the applicant’s circumstances and connections in India, including that he is an only son, offer him significant inducement to make his stay in Australia a temporary one.
The applicant has no income or job offer in India and he has no assets in India. Since arriving in Australia in 2008 the applicant was employed for 5 years at the Sydney Vegetable Market and, prior to the hearing, got his taxi licence to work as a driver, so, during the majority of his time in Australia appears to have been generating 20 hours’ a week income from this employment. This indicates he has stronger financial ties to Australia than to India, given his evidence that he never worked in India.
At the time of the hearing, during his many years here, the applicant’s academic progression has been extremely poor, even when his short time as a dependent on his wife’s student visa is considered. In a significant period of time he only completed 2 courses; an English course and his Certificate III in Commercial Cookery. He was not engaged in continuous study during the periods he held student visas. Both of the courses the applicant did complete were short, inexpensive courses at a vocational level and non-award level and the applicant has not progressed to higher education studies in that period. Further, the Tribunal has not been persuaded that the 2 additional courses the applicant wants to do will add to his employment or remuneration prospects in India in any significant way as he did not demonstrate, to the Tribunal’s satisfaction, that these courses are for a specific career path or goal. While he gave evidence that he plans to return to India at the completion of his diploma to open a restaurant, he provided no clear sense of how this would happen and appears to have done little concrete research in relation to this proposed business venture. His evidence was that his plan was in his mind but nothing was written down. The Tribunal did not find the applicant’s evidence in relation to his stated intention of opening a western restaurant on his father’s land to be credible. This is especially so given the applicant’s claim that he always wanted to open a restaurant on his family’s land and yet he has remained in Australia for a very lengthy period of time, without returning to India to commence this venture or even to research and plan it.
In relation to his visa and study history the Tribunal notes that the primary decision records the applicant has had 7 previous COEs cancelled (although the applicant disputes one of these). He also had a visa cancelled and has sought enrolment in several unrelated courses over the years including hospitality, management, business and 3 courses in tourism. Invited to comment on this and the gaps in his study history the applicant emphasised that his Certificate III and IV are related to what he wants to do which is starting a restaurant in India, that he did the tourism courses on the recommendation of an agent, and that he did not progress in his studies because of his personal circumstances when he fell in love with a Nepalese girl but his parents forced him to marry someone else and, after his wife came to Australia, he did not finish his course because he had to give it up as his family could not afford 2 international student fees. In relation to his visa cancelation, because he was no longer a member of the family unit of his wife after they separated, he said he did not notify the department because his family in India was trying to sort out the problem with her family because it was an arranged marriage and he could not concentrate on study at that time. Taken as a whole; factors including the applicant’s poor course completion, lack of any significant study progression, periods of time when he did not study, cancelled COE’s and visa cancellation, suggest that the applicant is not a genuine temporary entrant.
The Tribunal considers that the applicant’s visa and study history weighs significantly against his stated intention of being a genuine temporary entrant and, given his poor academic and study history in Australia, the Tribunal formed the view that the applicant was pursuing these courses with a view to maintaining ongoing residence in Australia.
Given the opportunity to draw the Tribunal’s attention to other considerations contained in Direction 53 the applicant declined to do so and therefore did not add or highlight any considerations not already discussed with him at length.
Nonetheless, despite all its concerns, the Tribunal delayed its decision making in this case to allow the applicant time to complete his Certificate IV in Commercial Cookery (which he had commenced at the time of the hearing) and his Diploma of Hospitality should he have maintained the motivation to do so, noting he has no condition preventing him from studying on his bridging visa granted in December 2014. In doing so the Tribunal acknowledges that the applicant has claimed he was young when he arrived and fell in love with a girl his family did not support, that they subsequently forced him to marry someone else and that his caused him stress and resulted in him being unable to focus on his studies. This was supported by his 2 friends who gave evidence that the applicant is a transformed person and just wants to finish his study and after that he is happy to buy a one way ticket and go back and start his own business. The applicant also pleaded for an opportunity to just finish these courses and then he would return to India. While the applicant has provided no evidence following the hearing that he has undertaken and/or completed these 2 courses, the Tribunal is satisfied that in the now over 10 years the applicant has been in Australia, he has been afforded every opportunity to complete the studies he stated he arrived in Australia planning to do.

In summary, given the applicant’s evidence that he will return to India to establish a restaurant; an endeavour his father will finance, his general and superficial evidence as to his proposed business in India, along with the fact that he has already been in Australia for 10 years and has had ample opportunity to complete any study he wished to during that time despite any personal circumstances that may have distracted him for a time from his study, the Tribunal has formed the view that the applicant is now using the student visa program to maintain ongoing residency in Australia. In any case the applicant has now had ample opportunity to finish the 2 courses he stated he only wanted to do before returning to India.
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).
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Karen Synon
Member

[2018] AATA 4322

18 September 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Intention

Procedural Fairness

Statutory Construction