Acharya (Migration)

Case [2022] AATA 301

Acharya (Migration) [2022] AATA 301 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Amogh Acharya

REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)

CASE NUMBER:  2006057

HOME AFFAIRS REFERENCE(S):          BCC2019/5480697

MEMBER:T. Quinn

DATE:11 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 11 February 2022 at 11:33am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, residence, study and work history – lengthy residence with one brief return – completion of some courses and non-completion and cancellation of others – enrolment in lower-level courses – current full-time work – community ties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347, 359(2), 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Baker v MIAC [2012] FCAFC 145
Chen v MIBP [2017] FCA 46
Cockrell v MIAC (2008) 171 FCR 345
FKP18 v MIBP [2018] FCA 1555
Jagroop v MIBP (2014) 225 FCR 482
Kaur v MHA [2019] FCCA 1372
Khan v Minister for Immigration [2019] FCCA 565
MIAC v Obele (2010) 119 ALD 358
Tshering v MHA [2019] FCCA 2667
Williams v MIBP (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 6 March 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

  2. The applicant applied for the visa on 31 October 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

  3. On 6 March 2020, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

  4. On 25 March 2020, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

  5. Approximately 22 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of…

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Details
AGLC
Acharya (Migration) [2022] AATA 301
Case
[2022] AATA 301
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered the case of an applicant, a 26-year-old male Nepalese citizen, who sought review of a decision to refuse him a Student (Temporary) (Class TU) visa, subclass 500. The applicant had been in Australia since 28 June 2014, initially on one student visa and then on a subsequent student visa that expired on 30 October 2019. The application under review was lodged the day after the expiry of his previous visa.

The primary legal issue before the Tribunal was whether the applicant was a genuine temporary entrant (GTE) for the purposes of the student visa program. This involved assessing the applicant's visa, residence, study, and work history in Australia, as well as his community ties, to determine if his intentions were consistent with the objectives of the migration program. The Tribunal was bound to consider the Minister's Direction made under section 499 of the Migration Act 1958 (Cth), but was required to reach its own independent conclusions on the merits of the case, applying relevant legal principles regarding the consideration of such guidelines.

The Tribunal noted that the applicant had remained in Australia for an extended period, with only one brief trip to Nepal in 2017. While he had completed some courses, he had also experienced non-completion and cancellation of others. Furthermore, he had enrolled in lower-level courses and was currently working full-time. The timing of his application, lodged immediately after his previous visa expired, raised concerns for the Tribunal regarding his true intentions and whether he was using the student visa program to circumvent the intended purpose of maintaining residence in Australia. The Tribunal considered these factors in light of the GTE criteria and relevant case law concerning the application of ministerial directions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines. [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].CONSIDERATION OF CLAIMS AND EVIDENCE The applicant in this case is a 26-year-old male Nepalese citizen who first arrived in Australia on 28 June 2014 on a student visa and then remained onshore on one further student visa which expired on 30 October 2019.[2] The applicant made the application which is the subject of this review the day after his previous student visa expired. This timing raises concerns for the Tribunal about the true nature of the applicant’s intentions and, taken together with other evidence as set out in this decision, raises concerns about whether the applicant is using the student visa migration programme to maintain residence which is in circumvention of the intentions of the migration programme. [2] See delegate’s decision and applicant’s response to the s359(2) letter. The applicant has remained onshore from the time of his arrival in 2014 until present, with the exception of one brief trip to Nepal 2017.[3] Prior to coming to Australia, the applicant completed High School in 2013 in Nepal.[4] [3]See delegate’s decision and applicant’s response to the s359(2) letter.[4] See applicant’s response to the s359(2) letter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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