JUSSAB (Migration) - [2020] AATA 3787

JUSSAB (Migration) [2020] AATA 3787 (4 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Nadia Abdullatif JUSSAB
Mr Khalid Mhogdadi MOHAMMED
Ms Anayah NOREEN
Ms Areej Khalid MOHAMMED
CASE NUMBER:  1915423
HOME AFFAIRS REFERENCE(S):          BCC2019/1273677
MEMBER:D Triaca
DATE:4 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 04 September 2020 at 11:22am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study at lower level and in different subject area than previous study in husband’s country – vague plans for future employment – no evidence of study between delegate’s decision and receiving tribunal’s request for further information – husband and children in Australia, families in own countries – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363A,
Migration Regulations 1994 (Cth), Schedule 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
Singh (Migration) [2019] AATA 2993
Vu Vu (Migration) [2019] AATA 5740
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 30 May 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 13 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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) because the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.
The main applicant (applicant) is a 31 year old citizen of Tanzania. There are three Secondary Applicants on the application, the applicant’s spouse and two children
The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 7 May 2020. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was…

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 3787
Decision Date: 4 September 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of JUSSAB, an applicant for a Subclass 500 (Student) visa. The dispute centred on whether the applicant met the genuine temporary entrant criterion, a requirement for the visa. The delegate had previously affirmed a decision to refuse the visa, and this decision was now under review by the Tribunal.

The primary legal issue before the Tribunal was to determine whether JUSSAB was a genuine applicant for entry and stay as a student, as stipulated by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily and intended to comply with the visa conditions. In making this assessment, the Tribunal was required to have regard to Direction No. 69, which outlines various factors to consider, including the applicant's circumstances in their home country and Australia, their immigration history, and the value of the proposed course of study to their future.

The Tribunal reasoned that the applicant's proposed study at a lower level and in a different subject area than their previous studies, coupled with vague plans for future employment, raised concerns about their genuine intention to study. Furthermore, the absence of evidence of study between the delegate's decision and the Tribunal's request for further information, along with the presence of the applicant's husband and children in Australia while their families remained in their home countries, contributed to the Tribunal's conclusion. The Tribunal interpreted "genuine" in its ordinary and natural meaning, requiring an unqualified intention to stay in Australia temporarily and to comply with visa conditions.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not satisfied the genuine temporary entrant criterion.

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

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 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. 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]

Ratio Decidendi

Legal Principle Established

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