Anjum (Migration) - [2020] AATA 5886

Anjum (Migration) [2020] AATA 5886 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Naveed Anjum
CASE NUMBER:  1933498
HOME AFFAIRS REFERENCE(S):         BCC2019/4627480
MEMBER:Amanda Upton
DATE:19 October 2020
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 19 October 2020 at 1:53pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – genuine temporary entrant – evidence of enrolment in masters course – logical and natural progression – efforts to gain enrolment in higher level courses – no strong ties in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

STATEMENT OF DECISION AND REASONS

Visa Refusal – Application for Review

The Applicant is a male citizen of Pakistan who is 28 years of age. He seeks review of a decision made by a delegate of the Minister refusing to grant him a student visa.
The Applicant applied for his visa on 16 September 2019. The visa application was refused by the delegate on 11 November 2019.

Type of Visa
The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.
If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis.

Reasons for Initial Refusal

The student visa was refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that he was a genuine applicant for entry and stay as a student.
The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa application had been refused.[2] The Applicant also provided a copy of that decision record to the Tribunal when he lodged his review application.
[2] Notification was given in accordance with s 66 of the Migration Act 1958 (Cth) and reg 2.55 of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister. By the operation of reg 2.55(8) of the Regulations, the Applicant is taken to have received the notification and decision record on the date that it was sent.
By lodging the review application, the Applicant contends that the delegate’s decision refusing the visa is neither the correct nor preferable…

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: [2020] AATA 5886
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a student visa made by the Applicant, who sought to undertake a Master of Professional Accounting course in Australia. The Applicant had provided a Confirmation of Enrolment for the course, which was due to commence on 14 September 2020 and conclude on 5 December 2021.

The central legal issue before the Tribunal was whether the Applicant met the criteria of being a "genuine applicant for entry and stay as a student" as stipulated by clause 500.212 of the Migration Regulations 1994 (Cth). This criterion requires the Tribunal to be satisfied that the applicant is authentic, intends to stay in Australia temporarily, and intends to comply with all visa conditions.

The Tribunal reasoned that the ordinary meaning of "genuine" implies authenticity and truthfulness. Drawing on case authorities, the Tribunal outlined that to satisfy the genuine applicant criterion, it must be satisfied on three fronts: that the applicant is a genuine applicant for entry and stay as a student; that the applicant genuinely intends to stay in Australia temporarily; and that the applicant intends to comply with visa conditions. The Tribunal noted that considerations relevant to the latter two points would significantly inform its assessment of the first point. The Tribunal was satisfied that the Applicant's enrolment was valid and current, thus meeting the criteria in clause 500.211.

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

In this case, the Applicant advanced his case for a student visa on the basis that he wishes to complete a Master of Professional Accounting (‘Master course’). In support of that claim, the First Applicant produced a Confirmation of Enrolment document (‘CoE’) bearing reference code BBFDD273. The specified course start date was 14 September 2020 and the course end date is 5 December 2021. Conclusion The Tribunal is satisfied that the Applicant’s enrolment in the Master of Professional Accounting course represents a valid and current enrolment. Accordingly, the Tribunal finds that the Applicant meets the criteria contained in cl 500.211. GENUINE APPLICANT CRITERION The critical issue in this case is whether the Applicant satisfies the primary criteria contained in cl 500.212. That clause states that for a student visa application to be successful, the applicant must be ‘a genuine applicant for entry and stay as a student’ in Australia.[6] [6] Migration Regulations 1994 (Cth), Sch 2, cl 500.212.Meaning of ‘Genuine Applicant’ While not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning.[7] The case authorities also suggest that, for an applicant to meet the genuine applicant criterion, the Tribunal must reach three states of satisfaction.[8] First, the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student.[9] Secondly, the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily.[10] Thirdly, a genuine applicant is one who intends to comply with any conditions to which the visa may be subject.[11] Amongst other relevant considerations, matters directly bearing upon the second and third states of satisfaction will significantly inform the Tribunal as to whether an applicant establishes the first state of satisfaction.[12][7] See the entry for ‘genuine’ in Oxford English Dictionary (Oxford University Press, 2nd ed, 1989); Macquarie Dictionary (Macquarie Dictionary Publishers, 7th ed, 2017).[8] Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [23]; Tandukar v Minister for Immigration [2019] FCCA 3510, [33]-[60].[9] Migration Regulations 1994 (Cth), Sch 2, cl 500.212. See discussion in Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [23]; Tandukar v Minister for Immigration [2019] FCCA 3510, [33]-[60].[10] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a).[11] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b). For applicants who satisfy the primary criteria, conditions which are imposed on all student visas are specified in the Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). They include Conditions 8105 (paid work limitation), 8202 (maintain enrolment in full-time registered course of study, maintain or increase Australian Qualifications Framework level of enrolment in the event of a course change, attend classes, achieve satisfactory course progress), 8501 (maintain health insurance), 8516 (continuing obligation to satisfy the primary or secondary criteria of the visa, as the case may be), 8517 (make arrangements for the education of school-age dependants), 8532 (extra requirements for minors) and 8533 (notify education provider of changes of address). Further conditions may also be imposed in appropriate cases under cl 500.611(2). These Conditions are set out in Sch 8 of the Regulations[12] See discussion in Tandukar v Minister for Immigration [2019] FCCA 3510, [33]-[60].

Ratio Decidendi

Legal Principle Established

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