Ahmed (Migration) - [2021] AATA 957

Ahmed (Migration) [2021] AATA 957 (28 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Syed Mohammed Ahmed
CASE NUMBER:  1927088
HOME AFFAIRS REFERENCE(S):         BCC2019/3645281
MEMBER:D Triaca
DATE:28 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 28 February 2021 at 11:28am

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 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 23 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 26 February 2021 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
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…

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 957
Decision Date: 28 February 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by an applicant, a citizen of Bangladesh, against a delegate's decision to refuse his application for a Subclass 500 (Student) visa. The applicant, who had been residing in Australia on temporary and bridging visas since May 2019, sought to remain in Australia to complete an Advanced Diploma of Network Security, which he was due to finish in July 2021.

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 clause requires an applicant to demonstrate a genuine intention to stay in Australia temporarily and an intention to comply with visa conditions. The Tribunal was required to consider this criterion in light of Direction No. 69, which outlines various factors to be taken into account, including the applicant's circumstances in their home country, potential circumstances in Australia, the value of the course to the applicant's future, and their immigration history.

The Tribunal reasoned that the term "genuine" in the context of the visa application meant authentic, real, or true. It noted that the applicant, a 21-year-old, had enrolled in and completed a Diploma of Information Technology in July 2020 and had commenced an Advanced Diploma of Network Security, with a projected completion date of July 2021. The applicant stated that he came to Australia to visit his sister, who encouraged him to study, and that IT courses are highly regarded in Bangladesh, offering future employment prospects. The Tribunal concluded that the delegate's decision to refuse the visa ought to 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

Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2] [1] See Singh [2019] (Migration) AATA 2993 at [13][2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 229213. The issues in this case arose in the following circumstances, the applicant is a 21 year old citizen of Bangladesh. He first arrived in Australia on 20 May 2019. He has resided here since that time on temporary and associated bridging visas. On 23 July 2019 he applied for a student visa. On 13 September 2019 a delegate of the Department refused his application (delegate’s decision). He subsequently applied to the tribunal for a review of the delegate’s decision and he provided the tribunal with a copy of that decision.14. The tribunal has concluded that the decision to refuse the applicant a student visa ought to be remitted in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:(a)The delegate’s decision record;(b)The applicant’s original written visa application;(c)The oral evidence and arguments of the applicant presented at the hearing;(d)Submissions made by the applicant’s representative 22 February 2021.(e)All written material filed by or on behalf of the applicant in relation to this case;(f)Other relevant documents on the Tribunal and Department files;(g)The applicant’s written response to the tribunal’s invitation to provide further information pursuant to s.359(2) of the Act (359 Response). The applicant is a relatively young Bangladesh citizen. He enrolled in a Diploma of Information Technology at Australian harbour International College in July 2019 and completed that course in July 2020. He then commenced an Advanced Diploma of Network Security. He is due to complete this course in July 2021. By this application he is seeking to remain in Australia to enable him to complete this course. Prior to arriving in Australia he commenced, but did not complete a Bachelor of Science. He states that he came to Australia for the purpose of visiting his sister, who currently resides in Australia. He was on a tourist visa at that time. His sister encouraged him to pursue study in Australia. He discussed his options with an agent who recommended he pursue the IT related courses. He says that such courses are highly regarded in Bangladesh and will assist him find employment in the IT industry.

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.’