Chunchu (Migration) - [2020] AATA 5039

Chunchu (Migration) [2020] AATA 5039 (5 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sravani Chunchu
Mr Suresh Yallanati
CASE NUMBER:  1912778
HOME AFFAIRS REFERENCE(S):         BCC2019/523158
MEMBER:Robert O’Neill
DATE OF ORAL DECISION:                   5 November 2020 at 11:34
DATE OF WRITTEN STATEMENT:        7 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cls.500.211 and 500.212 of Schedule 2 to the Regulations.

and the second applicant meets the criteria contained in cl. 500.311.

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 07 November 2020 at 3:27pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study record and progression from previous courses – family and business ties to home country, and two returns there – member of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 1, cl 1222, Schedule 2, cls 500.211(a), 500.212, 500.311

CASES

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Shoukat v Minister for Home Affairs [2020] FCA 194

Tandukar v Minister for Immigration [2019] FCCA 3510

INTRODUCTION AND OVERVIEW
Visa Refusal – Application for Review
INTRODUCTION AND OVERVIEW
Visa Refusal – Application for Review

The Applicant is a 31-year-old female citizen of India who seeks review of a decision made by a delegate of the Minister refusing to grant her a student visa.
The Applicant filed her visa application on 18 February 2019. The visa application was refused by the delegate on 7 May 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 she was a genuine applicant for entry and stay as a student.
The delegate’s reasons are set out in a decision record. That…

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 5039
Decision Date: 5 November 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered the application of an individual, referred to as the Applicant, for a Student (Temporary) (Class TU) visa, subclass 500 (Student). The Applicant sought to undertake an Advanced Diploma in Business in Australia, providing a Confirmation of Enrolment in support of this intention. The central dispute revolved around whether the Applicant met the criteria for being a "genuine applicant for entry and stay as a student" under clause 500.212 of the Migration Regulations 1994 (Cth).

The Tribunal was required to determine if the Applicant was a genuine applicant for entry and stay as a student, if she genuinely intended to stay in Australia temporarily, and if she intended to comply with the conditions attached to the visa. The meaning of "genuine" was interpreted according to its ordinary and natural meaning, signifying authenticity, reality, or truth. Case authorities indicated that satisfaction of these three aspects was necessary for an applicant to meet the genuine applicant criterion.

The Tribunal found that the Applicant's enrolment in the Advanced Diploma course was valid and current, satisfying clause 500.211. GENUINE APPLICANT CRITERION. However, the primary issue was the Applicant's satisfaction of clause 500.212. The Tribunal noted that matters bearing on the intention to stay temporarily and comply with visa conditions would significantly inform the assessment of whether the applicant was genuine. The decision indicates that the Tribunal was satisfied with the Applicant's enrolment but the ultimate determination of her genuineness, including her intentions regarding temporary stay and compliance with conditions, was the critical focus. The case was remitted for further consideration.

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 her case for a student visa on the basis that she wishes to complete a Advanced Diploma in Business (‘Advanced Diploma course’). In support of that claim, the Applicant produced a Confirmation of Enrolment document (‘CoE’). Conclusion The Tribunal is satisfied that the Applicant’s enrolment in the Advanced Diploma 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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