Nyamsuren (Migration) - [2020] AATA 5312

Nyamsuren (Migration) [2020] AATA 5312 (23 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Munkhtuya Nyamsuren
Mr Nyamdorj Namjil
Master Bilguuntugs Nyamdorj
CASE NUMBER:  1924836
HOME AFFAIRS REFERENCE(S):          BCC2019/3664344
MEMBER:D Triaca
DATE:23 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 23 December 2020 at 12:42pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No. 69 – reasons for studying in Australia – value of course to future career – well-educated and experienced business person – regression in level of study – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16
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 3 September 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 24 July 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 visas 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).
The applicants appeared before the Tribunal on 21 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
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…

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 5312
Decision Date: 23 December 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Nyamsuren concerning his application for a Subclass 500 (Student) visa. The dispute centred on whether Mr. Nyamsuren met the criteria for being a genuine temporary entrant, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if Mr. Nyamsuren genuinely intended to stay in Australia temporarily and to comply with the conditions of the visa. In making this determination, the Tribunal had to have regard to Direction No. 69, which provides guidance on assessing the genuine temporary entrant criterion for student visas. This Direction requires consideration of various factors, including the applicant's circumstances in their home country and potential circumstances in Australia, the value of the proposed course to their future, their immigration history, and any other relevant information.

The Tribunal reasoned that while Direction No. 69 provides important guidance, it should not be applied as a rigid checklist. Instead, the factors outlined in the Direction are intended to assist decision-makers in considering the applicant's circumstances holistically. The Tribunal noted that the applicant, a well-educated and experienced business person, was seeking to undertake a course that represented a regression in his level of study. This factor, among others, led the Tribunal to conclude that the applicant had not satisfied the genuine temporary entrant criterion.

Consequently, the Tribunal affirmed the decision under review, meaning Mr. Nyamsuren's application for the Subclass 500 (Student) visa was not granted.

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. This made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’

Ratio Decidendi

Legal Principle Established

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