Zumbali (Migration)

[2023] AATA 4773

Zumbali (Migration) [2023] AATA 4773 (8 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Bin Idrees Zumbali

CASE NUMBER:  2208553

HOME AFFAIRS REFERENCE(S):          BCC2020/2886144

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 December 2023 at 3:28 pm (NSW time)

DATE OF WRITTEN RECORD:                7 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 07 February 2024 at 3:52pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – had not been enrolled for about 15 months – failed to provide a GTE statement and other records – applicant was not a genuine applicant for entry and stay as a student – lack of genuine study – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 359

Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who, on 23 May 2022, refused to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clause 500.212 of the Migration Regulations 1994 (the Regulations) because he was not a genuine temporary student in Australia.

3. At the hearing on 8 December 2023, I made an oral decision to affirm the delegate’s decision and gave an oral statement of reasons for it.

4. On 21 December 2023 the applicant requested a written reduction of those reasons, among other things, and on 25 January 2024 the Department of Home Affairs made a similar request.

5. What follows is the requested record.

   STATEMENT OF REASONS

   Background, documentary aspects, the hearing and credibility concerns

6. The Review Application was filed on 11 June 2022 and is therefore within time.

7. The applicant responded to the Sec 359(2) Request by providing a completed Response Form on 13 September 2023, having the day before enrolled in a package of Hospitality courses at the Excel College. The COEs for these courses, which were generated on 12 September 2023, were also provided, along with a Form MR6 relating to a change in contact details arising from the termination of his agent’s retainer, a Form 1022 relating to a change in his marital status, a Form 1023 correcting information he had provided in the VA regarding his marital status, his mother and highest level of previous education, and the decision under review. He has provided no other evidentiary documents in support of his case, the most notable of which is the absence of a Genuine Temporary Entrant (GTE) statement.

8. The applicant also completed a Hearing Response form on 30 November 2023 when he accepted the invitation to attend the telephone hearing today, 8 December 2023. In that invitation he was asked to provide all documents on which he intended to rely by 1 December 2023. He did not respond to this request other than by indicating in the form that he was relying on his Sec 359(2) Response and on other evidence which he did not further identify.

9. During the hearing I informed the applicant that his documentary case was deficient for that and other reasons, but no application was made for an adjournment of the hearing, nor did he indicate that he had any other documents to provide in support of his case.

10. No explanation has been given to me, or at least none which I regard to be acceptable, for his failure to provide a GTE statement and other records which might have shed some light on his academic history in Australia.

11. The applicant did participate in the telephone hearing. Arrangements were made to have an Urdu interpreter available but as the applicant was content to engage with me in English his oral evidence was given in that form. He appeared to me to have a good understanding of spoken English. He was not otherwise represented. The evidence, in the form of an email from his agent sent to the Tribunal on 30 November 2023, indicates that his retainer was terminated on that date.  

12. I was not impressed with his oral evidence. He was a frustrating witness who often was either unable or unwilling to answer relatively simple questions directly. Despite repeated warnings from me to address them, he persisted in giving me speeches which the questions did not call for. To make matters worse, many of his answers, irrespective of their length, were quite unresponsive. He struck me as a witness who preferred to answer his own questions his own way rather than deal with those he was asked in a reasonably coherent manner.

13. Quite apart from that, there are other credibility concerns arising from his documentary case which undermine the reliability of much of his evidence on the critical factual issues relating to his asserted plans, motives, and intentions.

14. I thus regard much of his evidence, oral and documentary, to be less than credible and am not willing to act on it in the absence of corroboration from more reliable sources, unless it is consistent with the objective features, is inherently plausible or consists of an admission against his interests.

15. That said, his evidence on some topics is plausible or consistent with the objective features, and I have no difficulty in accepting it on those topics for that reason. The fact that he has, for reasons which he never satisfactorily explained to me, failed to provide important documentary evidence including, but not limited to, a certificate of completion for a Leadership and Management course at the Kingsway Vocational Training Institute, does nothing to assist his case.

16. I indicated to him during his evidence that he should have provided a copy of that certificate to the Tribunal well prior to the hearing. As I understood him, he said that he gave a copy of it to his former agent, Mr Paul Nanda, but for reasons not explained to me, it was never provided to the Tribunal.

17. Ultimately, of course, the applicant must bear responsibility for the documentary case he presents particularly in circumstances where, according to Nanda, the applicant terminated his retainer about 9 days before the hearing. If the applicant did provide the certificate to his agent, he (the applicant) did not, so far as his evidence goes, take any steps to ascertain whether it had been forwarded to the Tribunal and, in any event, he did not provide any other documents in support of his case despite having been requested to do so in the Hearing Invitation and despite having informed the Tribunal that he would do so in his Hearing Response form, which he completed and signed on the same date he terminated Nanda’s retainer.

18. As will be seen, I do have serious misgivings about his evidence in relation to the course at Kingsway. One of the reasons for this is that in the Sec 359(2) Response form he did not provide the start date for the course, information which would usually be included in a completion certificate. According to the enrolment information in the form, he has been enrolled in numerous courses at various providers since he arrived here in August 2015 and, in relation to most of them, has specified start dates. When I enquired about this, he said that the Kingsway certificate, which he said he had in front of him, did not contain a start date, that it only indicated when he completed that course, which he said was in March 2023.

19. He told me that he began studies in that course in February 2022. In fact, he identified in his oral evidence the date on which he enrolled in the course as 10 February 2022. The difficulty I have with this evidence is that he also said that he held no COE for this course. In circumstances where he says that he can recall the actual start date unassisted by any independent record but fails to include that date in the enrolment information in his Sec 359(2) Response form, and fails to explain why, his evidence that he enrolled in and completed this course must be treated cautiously.

20. In addition to that, in paragraph 15 of the form, he makes no mention of the course at Kingsway despite reciting his academic history after his enrolments at Austral were cancelled for non-payment of fess in May 2021. Again, he did not adequately explain to me why he did not include this course in that history. Indeed, his oral explanation for this, which I will detail later, is quite inconsistent with his documentary case.

21. It seems to me odd that, in these circumstances, he would withhold or otherwise fail to provide the completion certificate for the course at Kingsway and expect me to simply accept his word that he completed this course. I will come back to assess the broader significance of these aspects later.

22. I mention them now as but one example of the evidentiary difficulties which this case gives rise to.

    Approaching the issues in the review

23. The COEs for the three courses at Excel confirm the enrolment information provided by the applicant in the Response form, and that in the PRISMS record, namely that he is currently enrolled in two of them, namely a Certificate IV in Kitchen Management and a Diploma of Hospitality Management having completed, at that provider, the General English course on time in late October 2023. The CIV began on 13 November 2023 and has a projected end date of 11 May 2025. The Diploma has a start date of 7 July 2025 and an end date of 4 January 2026.

24. The applicant has given oral and documentary evidence to the effect that he wants to complete the courses in this Excel package before he returns to his home country of India and to be with his wife and pursue a career in hospitality. I do not accept this evidence, that this is in fact his real intention, for reasons I will develop in a moment.

25. Given that he is currently enrolled in registered courses of study, the issue before me is the same issue which the delegate determined adversely to the applicant in May 2022.

26. Of course, in addressing the GTE issue in this case, I will need to consider the MD69 factors which include whether completion of this package at Excel will add value to the applicant’s future; whether he has a significant incentive to return to India on completion of it; his immigration history, and any other relevant matters.

27. I remind myself that the GTE issue must be resolved on the evidence, oral and documentary, which I have whether that evidence was before the delegate or not.

    The documents in the department file and other documentary material

28. Apart from the Tribunal file, I have also had access to a department file which contains the VA filed on 25 December 2020, the applicant’s statement of purpose in support, a sponsorship affidavit from his father and an Interim Transcript of results in a CIV in Commercial Cookery (CIV) at the Austral Skills Institute of Australia issued on 24 December 2020. 

29. The VA was filed on 25 December 2020 to enable the applicant to continue with his studies in a Hospitality package at Austral which consisted of the CIV and a Diploma of Hospitality Management, courses he had enrolled in on 19 October 2020.

30. In the VA the applicant said that he wanted to complete those courses and return to India to run his own business but did not identify in that document what kind of business he had in mind.

31. In the VA he also informed the department that, firstly, he was at that time married to a female whom he identified in the VA as Neha Shaikh who was born in India in 1991; secondly that his mother was still alive; and thirdly, that his highest level of education was at the Senior Secondary level. All this information, according to the Form 1023, a document filed in the Tribunal on 12 September 2023, was incorrect in that he had in fact been divorced from Ms Shaikh, that his mother had passed away on 25 September 2019, and his highest level of education was a Bachelor of Commerce obtained at a local University in India.

32. In his statement of purpose, he did not mention that he had completed the Commerce course, but he explains why he wanted to study Hospitality at Austral. He said that he researched study options, was interested in establishing a career in this field and that he was lacking management skills. He gives some evidence about the content of the courses which he wanted to study at Austral and what skills he would acquire because of his studies in them. He also felt that they would help him to understand cultures, customs, and flavours. He goes on to say that he would learn about healthy food, budgeting for money, cleaning and learning how to manage a restaurant business.

33. He said that completion of the courses in this package at Austral would be “incredible value” to his future because it would help him to establish his own business and create excellent job opportunities in hotels, for example. He felt it was a smart investment which would support his business in the long term as well as giving him other opportunities along the way. He said that he was aware of the visa conditions, and he identified some of them.

34. There is also in the department file a letter from the delegate of 8 October 2021 which invited the applicant to comment on his adverse academic history. Reference is made in this letter to his PRISMS record, a document which revealed to the delegate that he was not at that stage enrolled in a course of study, his enrolments at Austral having been cancelled for non-payment of fees on 19 May 2021.The letter informed him that serious concerns were held about his compliance with visa conditions, and more particularly those which attached to the student (TU-500) visa granted to him on 18 May 2017, including condition 8202 which required him to maintain enrolment in a CRICOS registered course of study.

35. According to this letter, it appeared to the delegate that the applicant was utilising the student visa program to prolong his stay in Australia and that he may not be a genuine temporary entrant in this country. He was invited to comment on these things.

36. Despite the delegate having put the applicant squarely on notice of those concerns, and despite the concerns being fully supported by the information in the PRISMS record, the content of which was also set out in the letter, the applicant did not respond to the invitation. He confirmed as much in his evidence today, evidence which I have no difficulty accepting given there is no response from him in the department file.

37. Nor is there any other document in this file to establish that the applicant became enrolled in any other registered course of study after he received the invitation to comment in October 2021 and before the delegate made his refusal decision in May 2022.

38. The only other academic record which the applicant provided to the delegate, apparently, was the Interim Transcript of his studies in the CIV at Austral, a document issued to him shortly before he lodged the VA. 

39. I am thus satisfied that the applicant did not provide to the delegate any other evidence to establish that he had enrolled in a Diploma of Leadership and Management at the Kingsway Institute in February 2022. Certainly, he did not suggest that he had done so in the review.

40. In addition to the documents in the department file I have also had access to a PRISMS record, and a Movements Details record, for the applicant.

    The decision under review

41. I will not dwell on the delegate’s reasons other than to note that he had regard to the usual MD69 factors, was not satisfied that completion of the courses at Austral would add value to the applicant’s future, was not satisfied that he had a significant incentive to return to India on completion of them, acknowledged that he had some personal ties to his home country but was not satisfied that they gave him a significant incentive to return. Having found that these courses would not add value to his future, there was no other potential economic tie to India of any real significance.

42. As to his immigration history the delegate noted that the applicant had not responded to the invitation to comment despite the PRISMS history being set out in that invitation, a fact which suggested to the delegate that he had not complied with condition 8202 of his previous visa.

43. After attributing weight to the relevant factors, the delegate was not satisfied that the applicant met clause 500.212 of the Regulations.

44. It is not entirely clear to me why the delegate refused the visa on that basis given that, on the evidence then available to him, the applicant was no longer enrolled in a registered course of study, a fact which (among others) had given rise to the invitation to comment. If he was no longer enrolled in such a course, the delegate could simply have refused the visa on the basis that the applicant did not meet the enrolment requirement in clause 500.211 of the Regulations.

45. Be that as it may, given that the applicant is now enrolled in the package at Excel, I must proceed in this review by addressing the same issue as the delegate did in May 2022, namely whether the applicant currently meets clause 500.212 of the Regulations.

    Evidence and findings

46. The applicant was born in India in April 1992. According to his 359(2) Response form, he completed a Bachelor of Commerce at a local university in April 2015. He said he met his first wife while studying that course, evidence which I accept.

47. According to the delegate’s invitation to comment, the applicant was granted a VC-476 visa as a secondary applicant on 30 April 2015. I assume the primary applicant for that visa was his then wife but, in any event, he arrived here under that visa in August 2015 and began studies in a Diploma of Business at Elite Education in early 2017. He says, and I accept, that he completed that course in December of that year. PRISMS confirms as much.

48. He said, and again I have no reason not to accept his evidence on this because it is consistent with the objective features, that he did not study in 2018 even though there were two other courses in the Business package at Elite, namely an Advanced Diploma of Business and a Bachelor of Business. The information in the PRISMS record available to the delegate confirms that his enrolments in these two other courses were cancelled on 31 May 2018 for non-commencement. The applicant agreed with these details in his oral evidence.

49. The Movements Details record confirms that he returned to India in January 2018 and re-entered Australia on 16 April 2018. He has given evidence in the Form 1023 to the effect that his mother passed away in India on 25 September 2019, evidence which I accept.

50. In December 2019 he enrolled in another Diploma of Business, this time at the Trinity College. He has not explained to me why he went down this path, having already completed the same course at Elite, nor did he indicate whether any attempt was made to obtain any credits for his studies in the earlier course. He said he began studies at Trinity on 13 January 2020 but his enrolment in this course was ultimately cancelled for unsatisfactory progress on 29 September of that year. In other words, he was enrolled in the same course at a different provider for a period of about 8 months. Evidence to this effect is contained in his Sec 359(2) Response form.

51. He has also given oral and documentary evidence in this review to the effect that the TU-500 visa which had been granted to him in May 2017 to continue with his studies in the package at Elite was cancelled by a delegate under Sec 116 of the Act for breach of condition 8202. He told me that the decision to cancel that visa was made on 31 January 2020, that he successfully applied to the Tribunal to set aside that decision, and that the review decision was made by the Tribunal (differently constituted) on 14 July 2020. Evidence which recites these events is also contained in his 359(2) Response form and I have no reason to doubt it.

52. This being so, I am prepared to accept his evidence about the initial cancellation of his 2017 visa in early 2020 under Sec 116 and his successful review of it in the Tribunal later during that year.

1. Not long after the Tribunal set aside the cancellation of that visa, the applicant enrolled in the package of Hospitality courses at Austral mentioned earlier. He told me that he began studies in the CIV shortly after he enrolled in that course in October 2020.

2. Although he said that he completed only 1 subject in the CIV at Austral before his enrolment was cancelled for non-payment of fees on 19 May 2021, the Interim Transcript indicates that he had in fact completed 3 subjects in this course prior to the end of 2020.

3. He purported to explain the asserted completion of only 1 subject in that course on the basis that he contracted COVID-19 but I do not accept his evidence about this absent any contemporaneous documentary material to this effect. That said, even if he was infected at some stage, I fail to see the significance of it absent any credible medical evidence to the effect that he was unable to study the CIV because of it. PRISMS records, and the applicant agreed when giving evidence, that his enrolment in that course was cancelled for non-payment of fees, not for unsatisfactory attendance or performance.

4. Moreover, if COVID-19 had anything to do with his languid performance in the CIV he should have taken steps to defer his studies in that course or contact the department to explore other options or do both of those things. He did neither, apparently.

5. He has also given evidence in his Sec 359(2) Response form that he married his current wife, Maryam Bataher, online in India on 10 May 2021. He also stated in that form that he planned to travel to Dubai on 30 October 2023 to consummate his marriage to her and then travel to India with her to meet their relatives before he returned to Australia on 12 November 2023 to resume his studies.

6. In the Form 1022, which he filed on 12 September 2023 at about the time of filing his 359(2) Response form, he gives some further information about her.

7. He accepted in his oral evidence that, 3 days after he filed the Response form, he decided not to proceed with those travel arrangements but did not explain to me why apart from suggesting that he received advice from his agent that they were impractical for some reason.   

8. I am prepared to accept his evidence about this second marriage even though I have no documentary evidence at all to corroborate him in relation to it. He told me that he has never seen his wife, apart from online video chats, since they were married. His last visit to India took place in 2018 for a few months, according to the Movements Details record, and she has not been here to visit him, apparently.

9. Absent any meaningful detail, I do not accept his explanation for not proceeding with his planned travel arrangements. He has given no evidence concerning his ongoing relationship with his wife apart from asserting that he wants to complete the courses at Excel and return to India to pursue a career in hospitality and “go back” to her.

10. As I indicated earlier, despite having been invited by the delegate to comment on his academic history he did not do so. In the invitation the delegate set out that history in point form based on the information in the PRISMS record, none of which the applicant has challenged in the review. Indeed, he has given oral evidence which is broadly along the same lines.

11. As to his enrolment in the Diploma of Leadership and Management at Kingsway, what the applicant told me, or at least this is what I understood him to say, was that it was a non-registered CRICOS course. If it was, this would explain the absence of a COE for this course but, even if I were to accept this evidence, it would not assist his case given that it could not affect the extensive period during which he was not enrolled in a registered CRICOS course, as he was required to be under the Regulations.

12. As mentioned earlier, I have serious misgivings about his oral evidence in relation to this course. Absent credible corroborating material, I am unwilling to accept his oral and self-serving assertions that he enrolled in this course, or began studies in the course, on 10 February 2022, that he fulfilled the requirements for the course over the ensuing 13 months and completed it in March 2023. Nor do I accept his evidence that he provided Nanda with a copy of a completion certificate for this course. Certainly, such a document was not provided to the Tribunal and no acceptable explanation for this was given to me at the hearing.

13. If the certificate exists in the terms asserted by the applicant, without it specifying a start date, I do not know how he was able to specify that date in his oral evidence in circumstances where he could not, or did not, provide this information in the 359(2) Response form and where, indeed, he had failed to mention the existence of this course at all in paragraph 15 of that form.

14. Just pausing here, the applicant’s oral and documentary evidence accepts that he was not enrolled from May 2018 to December 2019, a period of about 19 months; from May 2021 to February 22, a period of 9 months; and from March 2023, when he says he completed the course at Kingsway, until he enrolled in the courses at Excel in September of that year, another period of 6 months.

15. Even if I were to exclude the first of those periods from consideration in this review on the ground that the Tribunal would almost certainly have considered this period when it decided to set-aside the decision to cancel the applicant’s earlier visa, on the applicant’s own case in this review, he has not been enrolled for a period of at least 15 months.

16. The Sec 359(2) Request was sent out to Nanda on 29 August 2023. The applicant, I infer, was duly informed of this as steps were then taken to enrol him in the various courses at Excel. Although he (Nanda) provided to the Tribunal the COEs for the Excel package on or about 12 September 2023, the date on which those records were generated, these enrolments did not take place until about 2 weeks after the Sec 359(2) Request form was sent.

17. In circumstances where, even on his case, he had not been enrolled for about 15 months, having (he said) completed the course at Kingsway in March of that year, and had not enrolled at Excel until after he received the 359(2) Request, these belated enrolments can only be seen as a strategic attempt to reinforce his review case.

18. The 359(2) Request makes clear that the Tribunal was seeking information from him concerning his enrolment in a registered course of study. On any view of the evidence, at the time he received that Request, he was not currently enrolled.

19. The package of Hospitality courses at Excel would, if completed on time, require the applicant to remain here until early in 2026. In circumstances where he had enrolled in a very similar package of Hospitality courses at Austral as long ago as October 2020, courses in which he had made very little progress before his enrolment in the CIV was cancelled for a failure to pay fees in May 2021, and where he has not satisfactorily explained this to me, I am simply not prepared to go along with his assertion that completion of these courses would add value to his future.

20. I do not accept his oral evidence that he genuinely wants to study them and return to India to establish and operate a restaurant. I am unable to accept this evidence in circumstances where he has already had ample opportunity to adequately engage with his studies in this and other fields. All his enrolments, apart from the Diploma of Business at Elite during 2017 and, on his case, the Diploma at Kingsway from February 2022 to March 2023, have come to nothing. Even though his TU-500 visa was cancelled by the delegate as long ago as January 2020 for breach of the enrolment condition, and despite having to go to the Tribunal to reverse that decision, he appears to have learnt nothing about the need to comply with that condition and maintain enrolment in a registered course of study.

21. Unless an extensive failure to comply with such a fundamental condition is adequately explained by credible evidence, a review applicant cannot ordinarily expect the Tribunal to discount that failure, or to ameliorate its consequences. 

22. There are other aspects of his academic history which are of real concern including the fact that, despite having completed the Diploma at Elite in 2017, he enrols in the same course at Trinity in December 2019, an enrolment which came to nothing when it was cancelled for unsatisfactory progress about 9 or 10 months after he commenced the course. Information to this effect can be found in his 359(2) Response form. Again, no explanation for it has been given. 

23. The applicant has given evidence in his 359(2) Response form that he has been working in Australia virtually since he arrived here in August 2015. Contrary to his assertion in the statement of purpose none of his employment is remotely connected with the Hospitality sector. I do not consider his work as a food delivery driver for Uber to be remotely relevant experience. His other employment, as a console operator for Caltex and a driver for GM Cabs, is obviously unrelated.

24. I do not accept that the applicant has a genuine plan to complete the Excel package and go back to India to establish and operate a restaurant with help from his father. I am not prepared to accept his oral and documentary evidence to this effect. I have seen the affidavit from his father, mentioned earlier, which he provided to the department to support the VA in December 2020 in which he refers to the applicant’s desire to engage in studies at Austral. But there is nothing in this affidavit to corroborate the applicant’s evidence that he wanted to complete those courses and go back to India to find work in the hospitality sector, or to establish a business, and this despite the applicant having indicated to the delegate in his statement of purpose that this is what he wanted to do. Nor is there any evidence in this affidavit to the effect that he was willing and able to assist the applicant to establish a restaurant.

25. Even if I were to accept his evidence that he had studied at Kingsway and completed the Diploma of Leadership and Management, and I am a long way from doing that, there is still a long and unexplained period of non-enrolment which only came to an end in 2023 after he received the 359(2) Request.

26. The applicant asked me today to give him one more opportunity. But I am simply unable to do that in these circumstances. Allowances can and are made in an appropriate case for an applicant, particularly an inexperienced one, who has taken a scenic or regressive route in their studies, or has long gaps in study, or has struggled with a course or even one who has a record of poor performance, provided satisfactory evidence is given to explain these things. In this case, there is no such evidence.

27. Given what the applicant had been through in the first half of 2020, including the need for him to go to the Tribunal to seek merits review of a decision to cancel his earlier visa, his later conduct in relation to his studies here reveals to me that he learnt very little, if anything, from that experience.

28. His asserted plans leave open the possibility that he might find employment in the Hospitality sector in India, but he has given no evidence of expected remuneration in his 359(2) Response form. He has provided some anecdotal evidence in that form about expected sales income from a restaurant, but this is of no real utility without disclosing the source of this information and any detailed costings.

29. I do not accept that he genuinely intends to explore the prospect of employment if he were able to complete the Excel courses. If he had wanted to go down that path, he would not have approached his studies at Austral in the way he did.

30. Even if I were to find that completion of these courses at Excel would add value to his future, I would not be prepared to attach significant weight to it in these circumstances.

31. As to whether he has a significant incentive to return to India, I accept that he has a wife and father who live there and that he returned to India in November 2016 for a few days when his father was unwell. The Movements record confirms as much. He also has a brother who lives in India but there is no other evidence about him.

32. I accept that his father has been supportive of his studies here, but the affidavit makes no mention of the applicant’s asserted plans, it simply recites the fact that he would complete his studies at Austral and go back to India to “settle down”. Curiously, it does not mention the applicant’s wife, nor does his father otherwise corroborate the applicant in relation to his current enrolments at Excel.

33. I thus accept that his father has provided him with financial support in the past, and that he is most probably willing to continue to fund his education here, but do not accept that he has the financial means or inclination to provide the necessary finance, whatever that might consist of, to establish a restaurant in India. `

34. Nor can I accept that he has a strong personal tie to go back to India and be with his wife. They were married online in May 2021, now more than 2.5 years ago, but they have never met in person. Arrangements were made to consummate their marriage, but these were not pursued for reasons which I have not been given, or which in any event I do not accept to be reasonable.

35. He says in his 359(2) Response form that he contacts his wife and family “almost daily”, but he does not say why he engages in this level of communication, and I very much doubt that he does.

36. There is no suggestion in the evidence that any member of his family has been involved in his decision making since he has been here, or that any of them would have a role to play in his asserted plans, apart from his uncorroborated assertion that his father would help to implement them.

37. These are familial connections to India, but they are nothing more than that. They are certainly not particularly strong or enduring ties to that country sufficient to give him a significant incentive to return.

38. He says in his 359(2) Response form that he has a lot of relatives and friends in India but gives no evidence regarding the extent of his contact with them, if indeed there is any.

39. Nor can I find, on the evidence led in this case, that there is a strong potential economic tie to India in the form of potential employment in the hospitality sector in that country or other involvement in a hospitality business of some kind. His assertion that he wants to establish a restaurant is, on the evidence led, aspirational and lacks required detail for it to be taken seriously.   

40. When I look at the countervailing factors, the applicant has been here since 2015, has made languid academic progress, having completed only a Diploma of Business at Elite in the early stages, and a 5-week General English course at Excel more recently. His other studies, including a similar Hospitality package at Austral, have come to nothing, apart from what he says he completed at Kingsway, which I have serious misgivings about.

41. Moreover, he has been gainfully employed here for most of that time. Details of his work activities are set out in his 359(2) Response form and need not be reiterated. It is an extensive history, particularly for an applicant who has performed as badly in his studies as this one has.

42. I do not think his work activities assist his case on the issue of whether he has a significant incentive to return to India. He is still working as a taxi driver for GM Cabs, apparently. I regard his employment history over a period of at least 5 years as an economic tie to Australia of some dimension and a reason why he does not want to go home. One of his brothers lives here under a student visa, apparently, which does not assist him. On any view, the applicant is in no hurry to go home.

43. He accepts in his Sec 359(2) Response form that he has friends here and a brother who is studying here.

44. I am not prepared to find that he has in these circumstances a significant incentive to return to India on completion of these courses. He gives no evidence of his family’s assets in India. He says he has plans to establish his own restaurant with financial support from his father but the problem with this evidence is that he gives no evidence regarding his father’s financial capacity to assist him.

45. The applicant also says in his Response form that the courses at Excel are highly relevant to his career aims but I do not accept that he has those aims given, among other things, his earlier unexplained conduct in relation to the similar package at Austral.

46. His immigration history does him no favours given his unexplained failure to provide accurate information in his VA. His failure to correct that information until September 2023 is a concern as is his failure to respond to the invitation to comment. Whilst there is no legal obligation on an applicant to respond to an invitation to comment there is obviously a practical onus to do so unless the conveyed information is not in dispute or there is other information which the applicant can provide in response to it.

47. As noted earlier, in this case the applicant did not provide, in response to that invitation, any evidence that he had enrolled in the Diploma at Kingsway.

100.   I do not regard the cancellation of his earlier visa in January 2020, and the fact that he successfully reviewed that decision in the Tribunal in July of that year, to be of any great assistance to this aspect of his case. Indeed, I would have thought, having gone down that path, he would have approached his later enrolments at Austral very differently to what in fact he did.

101.   There would appear to be no other matters of any relevance other than to reiterate that the applicant now wants to remain in Australia until January 2026, now almost 2 years away, to study a package of Hospitality courses which he had the opportunity of completing at Austral long before now.

Summary and conclusion

102. The delegate found in May 2022 that the applicant was not a genuine temporary student in Australia and thus did not meet the requirements of clause 500.212 of the Regulations.

103.   I have reached the same conclusion on the evidence led in this review. Indeed, it seems to me to be an overwhelming case against the applicant on that issue.

104. This being the case, I find that he does not meet clause 500.212(a) of the Regulations and that the delegate’s decision to refuse to grant the applicant a student (TU-500) visa should be affirmed.

DECISION

105.   The Tribunal affirms the decision under review.

Michael Bradford
Member