Carneiro (Migration) - [2021] AATA 2699

Carneiro (Migration) [2021] AATA 2699 (10 June 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Miss Loona Carneiro
CASE NUMBER: 1934027

HOME AFFAIRS REFERENCE(S): BCC2019/4960759

MEMBER: D Triaca

DATE: 10 June 2021

PLACE OF DECISION: Melbourne

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

Statement made on 10 June 2021 at 1:02pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met – applicant hasn’t been studying – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

CASES
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16

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 18 November 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 3 October 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 9 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

The applicant was assisted in relation to the review by their registered migration agent.

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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…

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 2699
Decision Date: 10 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a delegate's decision to refuse a Student (Temporary) (Class TU) visa, subclass 500. The applicant, a 21-year-old French citizen, sought to remain in Australia to complete a General English course. The delegate had refused the visa application, finding that the applicant did not meet the genuine temporary entrant (GTE) criterion.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily for the purpose of study and then depart. This involved assessing the applicant's credibility and the veracity of her stated intentions and circumstances surrounding her previous enrolment and current application. The Tribunal was required to consider all evidence presented, including the applicant's oral evidence, written submissions, and departmental records, to determine if she met the GTE requirements.

The Tribunal affirmed the delegate's decision to refuse the visa. It found serious reservations about the applicant's genuineness as a temporary entrant. The Tribunal noted that the applicant had resided in Australia since 2018, holding a working holiday visa that expired in October 2019, and had been on a bridging visa since then. Her explanation for the significant delay between her previous visa refusal and commencing her current course, stating she was advised by her former agent to wait for the review outcome and had been "not doing much," raised concerns. Furthermore, her assertion that she was unaware of her previous enrolment in business courses, that these were arranged by her agent, and that she did not prepare her Genuine Temporary Entrant statement, coupled with her claim of poor English language skills, led the Tribunal to doubt her stated intentions and understanding of her visa application process.

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 issues in this case arose in the following circumstances, the applicant is a 21 year old citizen of France. She first arrived in Australia on 10 October 2019. On 18 November 2019 a delegate of the Department refused her application (delegate’s decision). She subsequently applied to the tribunal for a review of the delegates decision and he provided the tribunal with a copy of that decision The tribunal has concluded that the decision to refuse the applicant a student visa ought to be affirmed 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)All written material filed by or on behalf of the applicant in relation to this case;(e)Other relevant documents on the Tribunal and Department files;(f)Written Submissions prepared by the applicant’s representative dated 2 June 2021 and supporting documents filed therein including news reports, English Proficiency Reports, Confirmation of Enrolment, Evidence of Health cover, Copies of relevant AAT decisions referred to in those submissions.(g)Written response to the tribunal’s request for further information pursuant to s.359(2) of the Act (359 Response). The applicant is currently enrolled in a General English course at Lonsdale Institute. She commenced studying in February 2021 and is due to complete the course in May 2022. By this application she is seeking to remain here to enable her to complete the course. The applicant says that she plans to return home at the completion of her studies and undertake further study in France. She says she hopes to study International Business. The tribunal has serious reservations about this application. For the following reasons, it does not consider her to be a genuine applicant. The applicant has resided in Australia since 2018. She arrived here on a working holiday visa that ceased in October 2019. She has been on a bridging visa since that time. She applied for a student visa in October 2019. At that time she was enrolled in and proposing to study a Certificate III and IV in Business at Masters in Training and was seeking to remain here to enable her to complete these courses in December In her evidence to the tribunal, she says that she was not aware of the circumstances of her enrolment and that she had no wish to enrol in business courses. This was arranged by her former agent. She says that she did not know that she was enrolled in these courses. She did not prepare the GTE Statement filed in support of her application. She had expressed a wish to her former agent to study English language courses. She attributes her lack of understanding of these matters to her poor knowledge of the English language. When asked how she spent her time between the delegate’s decision in November 2019 and commencing her current course in February 2021, she simply stated ‘not doing much.’ When asked why she had taken so long to enrol in an alternative course, she said that she had been advised by her former agent that she should wait until the outcome of this review.

Ratio Decidendi

Legal Principle Established

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