Huang (Migration) - [2021] AATA 865

Huang (Migration) [2021] AATA 865 (13 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Jiawen Huang
CASE NUMBER:  1926599
HOME AFFAIRS REFERENCE(S):         BCC2019/2624429
MEMBER:Robert O’Neill
DATE:13 March 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 13 March 2021 at 7:24pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Diploma of Interpreting – change in study pathway – overall education history – personal ties to home country – no adverse immigration history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Visa Refusal – Application for Review

The Applicant is a 30-year-old female citizen of China 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 20 May 2019. The visa application was refused by the delegate on 17 September 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 decision record was provided to the Applicant when she was notified that her visa application had been refused.[2] The Applicant also provided a copy of that decision record to the Tribunal when she lodged her 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 outcome…

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 865
Decision Date: 13 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision by the Minister to refuse a Student (Temporary) (Class TU) visa, subclass 500 (Student), to Mr Huang. The visa application was based on Mr Huang's intention to undertake a Diploma of Interpreting. The primary issue was whether Mr Huang was a genuine temporary entrant (GTE) as required by the *Migration Regulations 1994* (Cth).

The Tribunal was required to determine whether Mr Huang had demonstrated that his intention to study in Australia was genuine and that he intended to comply with the conditions of his visa and depart Australia at the end of his stay. This involved assessing his overall education history, his personal ties to his home country, and whether he had any adverse immigration history.

In its reasoning, the Tribunal noted that while Mr Huang had previously changed his study pathway, this alone did not disqualify him from being a GTE. The Tribunal considered the totality of the evidence, including Mr Huang's stated reasons for wishing to study in Australia, his financial capacity, and his connections to his home country. The Tribunal found that Mr Huang had provided sufficient evidence to satisfy the GTE requirement.

Consequently, the Tribunal set aside the Minister's decision and remitted the matter to the Department of Home Affairs with a direction to grant Mr Huang the Student (Temporary) (Class TU) visa, subclass 500 (Student).

Orders