Acharya (Migration) - [2021] AATA 239

Acharya (Migration) [2021] AATA 239 (1 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sashi Acharya
CASE NUMBER:  1925521
HOME AFFAIRS REFERENCE(S):          BCC2019/3431318
MEMBER:D Triaca
DATE:1 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 01 February 2021 at 12:58pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – proposed study consistent with education level and relevant to future plans – previous study in third country and return to home country – wife and child in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994, Schedule 2, cl 500.212(a)
CASE
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16
Singh [2019] (Migration) AATA 2993
Vu Vu (Migration) [2019] AATA 5740
Vu Vu v Minister for Immigration [2020] FCCA 2292
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 Home Affairs on 4 September 2019 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 for the visa on 9 July 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 29 January 2021 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 239
Decision Date: 1 February 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review of a decision to refuse a Subclass 500 (Student) visa. The applicant, a citizen of Nepal, sought to study automotive-related courses in Australia. The Tribunal had regard to the applicant's circumstances, immigration history, and the relevance of the proposed study to his future plans.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a genuine temporary entrant under clause 500.212 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily and to comply with visa conditions, having regard to specified factors and Direction No. 69.

The Tribunal reasoned that the applicant's previous study in India, followed by his return to Nepal, was a significant factor suggesting he would likely return home after completing his studies in Australia. The Tribunal also accepted that the proposed automotive courses were consistent with the applicant's educational background and previous work experience, and that they would enhance his future employment prospects and earning potential in Nepal. The Tribunal noted that the applicant had utilised his time in Australia productively and appeared to have a reasonable understanding of his course and educational provider.

The Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant is a 29 year old citizen of Nepal. He first arrived in Australia on 19 April 2019. He applied for a student visa on 9 July 2019. On 4 September 2019 a delegate of the department refused his application (delegate’s decision). On 11 September 2019 the applicant applied to the tribunal for a review of the delegate’s decision and provided the tribunal with a copy of that decision. The tribunal has read and had regard to the documents provided by the applicant to the Department and the Tribunal including enrolment, GTE Statement, application for a student visa, evidence of study, confirmation of enrolment. On 5 June 2020 the tribunal wrote to the applicant and invited him to provide further information pursuant to s.359(2) of the Act. On 12 June 2020 the applicant responded in writing (359 Response) and provided documents in support. The Tribunal has read and had regard to those documents, together with further documents filed on 12 January 2021. The applicant is enrolled in a series of automotive related courses. He is due to complete his Certificate III in Light Vehicle Mechanical Technology in February 2021, the completion of this certificate delayed due to COVID-19. He is enrolled in a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology. He is due to complete the courses in August 2022. The applicant’s plan is to return home to Nepal at the completion of his studies and open a garage. He says that his studies in Australia are exposing him to advanced mechanical technology that will assist him in his return. He says he will eb able to utilise his knowledge and experience from Australia in Nepal. The applicant has utilised his time in Australia productively. He has been here for a relatively short period and appears to have studied throughout that time. This is in his favour. The applicant’s background is as follows. He completed a Diploma of Mechanical Engineering from the National Institute of Technology in India between 2011 and 2015. He worked as a mechanical engineer in Nepal between 2015 and early 2019. The Tribunal places significant weight on the fact that the applicant studied in India for a period of 4 years and at the completion of those studies he returned home to Nepal. This indicates he is likely to do so at the conclusion of his studies here. The Tribunal accepts that the proposed study is relevant to the applicant’s future plan and his previous work experience and study. It is consistent with his level of education. The Tribunal considers it will assist the applicant in his future employment and improve his employment prospects in his home country or a third country. It follows that the tribunal considers the proposed study is likely to increase the applicant’s remuneration in his home country. These matters are in the applicant’s favour. The applicant appears to have a reasonable understanding of living in Australia. He has a reasonable understanding of his education provider and the course he is studying.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. Genuine applicant for entry and stay as a student (cl.500.212) Clause 500.212 requires as follows:The applicant is a genuine applicant for entry and stay as a student because:(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:(i)the applicant’s circumstances; and(ii)the applicant’s immigration history; and(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and(iv)any other relevant matter; and(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and(c)of any other relevant matter.Does the applicant intend genuinely to stay in Australia temporarily? In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. This is made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’