Mohammed (Migration) - [2020] AATA 2974

Mohammed (Migration) [2020] AATA 2974 (11 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Saddam Hussain Ali Mohammed
CASE NUMBER:  1903242
HOME AFFAIRS REFERENCE(S):          BCC2018/3167494
MEMBER:D Triaca
DATE:11 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 May 2020 at 11:02am

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 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 22 August 2018. 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) 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 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 17 April 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 sent to the applicant‘s nominated address, being the address provided by the review applicants in connection with this application for review.
On 1 May 2020 the applicant responded to the Tribunal’s request in writing (359 Response) and provided the Tribunal with further documentation in support of the application.
In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate…

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 2974
Decision Date: 11 May 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision to refuse a Subclass 500 (Student) visa. The applicant's eligibility for the visa hinged on satisfying the criteria for a genuine temporary entrant as a student, as outlined in Part 500 of Schedule 2 to the Regulations.

The Tribunal was required to determine whether the applicant was a "genuine applicant for entry and stay as a student" under clause 500.212 of the Regulations. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily, intended to comply with visa conditions, and considering any other relevant matters. In making this assessment, the Tribunal was guided by Direction No. 69, which specifies factors to consider, including the applicant's circumstances in their home country and Australia, the value of the course to their future, their immigration history, and any other relevant information.

The Tribunal reasoned that the term "genuine" implies an authentic and true intention, meaning the applicant must demonstrate an unqualified intention to stay in Australia for a limited time only. The applicant's history of limited academic progress, changes in course enrolment to English and vocational studies, periods of financial hardship, and gaps in their studies were all considered in the overall assessment of their genuine temporary entrant status. The Tribunal concluded that these factors, when viewed holistically, did not support a finding that the applicant genuinely intended to stay in Australia temporarily for the purpose of study.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not satisfied the genuine temporary entrant criterion for the Subclass 500 (Student) visa.

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. The critical issue is whether the applicant satisfies the primary criteria contained in cl 500.212 set out above. 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. The meaning of “genuine applicant” is well considered in Vu Vu (Migration) [2019] AATA 5740[1]. 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. In order to be regarded as genuine, the applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified.[2][1] [21] – [35][2] See Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858

Ratio Decidendi

Legal Principle Established

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