Mohammed (Migration) - [2021] AATA 3945

Mohammed (Migration) [2021] AATA 3945 (12 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Moiz Mohammed
CASE NUMBER:  2002598
HOME AFFAIRS REFERENCE(S):          BCC2019/5640337
MEMBER:T. Quinn
DATE:12 October 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 12 October 2021 at 5:44pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – academic progress – only one course completed, at lower level than originally enrolled, and delayed progress in current course – physical health and loneliness – no reference to health in genuine temporary entrant statement – no evidence of course progress or health provided – continuing work and economic incentive to remain – vague, general plans for future employment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASE
Tshering v Minister for Home Affairs [2019] FCCA 2667
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 (‘the delegate’) on 3 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 8 November 2019 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 3 February 2020, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that 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 applicant’s review application.
On 11 February 2020, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
Approximately 20 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 20 August 2021, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant…

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 3945
Decision Date: 12 October 2021

CaseChat Overview and Summary

This matter concerned an appeal by an Indian citizen, a 32-year-old male, against a decision to refuse him a Student (Temporary) (Class TU) visa, subclass 500. The applicant had been in Australia since November 2015 and had not returned to India during that period. The appeal was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant was a genuine temporary entrant, as required for the grant of the visa. This involved assessing his academic progress, his stated reasons for remaining in Australia, and his future intentions. The Tribunal was bound to consider a Direction made by the Minister under section 499 of the Migration Act 1958 (Cth), but was required to reach its own independent conclusions on the merits of the case, applying relevant legal principles.

The Tribunal found that the applicant's academic progress was not indicative of a genuine student. Despite being in Australia for nearly six years on student visas, he had only completed one course, an Advanced Diploma of Business, in January 2018. He had previously been enrolled in a Master of Information Technology and a Bachelor of Business (Professional Accounting) but had not completed either. The Tribunal noted that the applicant had provided vague reasons for not completing these courses, including a change in career pathway and a health condition, but had not provided evidence to substantiate these claims. Furthermore, the applicant's stated plans for future employment were general, and the Tribunal considered that there was a continuing work and economic incentive for him to remain in Australia. The Tribunal concluded that the applicant had not satisfied the genuine temporary entrant requirement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines. [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].CONSIDERATION OF CLAIMS AND EVIDENCE The applicant in this case is a 32-year-old male Indian citizen who first arrived in Australia on 24 November 2015.[2] He has remained onshore since that time without returning to his home country at all.[3] Prior to coming to Australia, the applicant completed a Bachelor of Technology Computer Science and Education in August 2014 in India.[4] [2] See delegate’s decision and applicant’s response to the s359(2) letter.[3]See delegate’s decision, applicant’s response to the s359(2) letter and Department File.[4] See applicant’s response to the s359(2) letter. Since his arrival in Australia, the only course the applicant has completed is an Advanced Diploma of Business in January 2018. The Tribunal does not consider this the sort of academic progress one would expect of a genuine student who has been onshore for nearly six years on the basis of student and associated bridging visas. The applicant has previously been enrolled in a Master of Information Technology and a Bachelor of Business (Professional Accounting) but did not complete either of these courses. The applicant gave evidence at hearing that he completed three subjects in his Masters course but changed his mind in relation to his career pathway and instead undertook the aforementioned Advanced Diploma of Business. The applicant gave evidence that he did not complete any units in his Bachelor of Business as he was in so much pain in relation to his haemorrhoids condition (detailed further below)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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