Od (Migration) - [2021] AATA 987

Od (Migration) [2021] AATA 987 (7 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gerelt-Od Od
CASE NUMBER:  1922234
HOME AFFAIRS REFERENCE(S):          BCC2019/3452281
MEMBER:D Triaca
DATE:7 April 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 08 April 2021 at 12:07pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – two previous tourist visas – continuous study since delegate’s decision and current enrolment – future business plans – immediate family ties to home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

CASES
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16
Singh (Migration) [2019] AATA 2993
Vu Vu (Migration) [2019] AATA 5740
Vu Vu v Minister for Immigration [2020] FCCA 2292
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 25 July 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 10 July 2019. 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).
The applicant appeared before the Tribunal on 21 March 2021 to give evidence and present arguments.: The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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…

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 987
Decision Date: 7 April 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review of a delegate's decision to refuse a Subclass 500 (Student) visa. The applicant, a 19-year-old citizen of Mongolia, had previously entered Australia on tourist visas and applied for a student visa while in Australia. The delegate refused the application, leading to the applicant seeking review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion of being a "genuine applicant for entry and stay as a student" under clause 500.212 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily and to comply with visa conditions, having regard to various factors outlined in Direction No. 69.

The Tribunal reasoned that the applicant had utilised the time since the delegate's decision productively by undertaking further studies in English and business-related courses. The applicant's current enrolment in a Diploma of Social Media Marketing and plans for further study, followed by a return to Mongolia to pursue his existing business interests, were considered. The Tribunal accepted that the proposed study was consistent with the applicant's educational background and career path, likely to enhance his employment prospects and remuneration in his home country. The Tribunal also noted in the applicant's favour that he continued to study and apply himself despite the visa refusal and the uncertainty of his application.

Consequently, the Tribunal concluded that the matter should be remitted to the delegate for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.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 is 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.’

Decision

Reasons for decision

The issues in this case arose in the following circumstances, the applicant is a 19 year old citizen of Mongolia. He first arrived in Australia on a tourist visa in 2016. He was granted a further tourist visa on 20 February 2019 and arrived here on that visa on 11 April 2019. On 10 July 2019 he applied for a student visa. On 25 July, a delegate of the Department refused his application (delegate’s decision). He subsequently applied to the tribunal for a review of the delegate’s decision and he provided the tribunal with a copy of that decision. The tribunal has concluded that the decision to refuse the applicant a student visa ought to be remitted in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:(a)The delegate’s decision record;(b)The applicant’s original written visa application;(c)The oral evidence and arguments of the applicant presented at the hearing;(d)All written material filed by or on behalf of the applicant in relation to this case;(e)Other relevant documents on the Tribunal and Department files;(f)Applicant’s written response to the tribunal’s invitation to provide further information pursuant to s.359(2) of the Act. This is a situation in which the applicant has utilised his time since the delegate’s decision productively. He has completed courses in General English, IELTS and Cambridge First Certificate English Preparation progressing to Intermediate at Browns English Language School. In 2020 he enrolled in a Certificate IV in Business which he completed in January 2021. By this application he is seeking to remain in Australia to complete a Diploma of Social Media Marketing at Australian Pacific College. He is due to complete this course in early 2022 and plans to undertake an Advanced Diploma of Marketing following this course. His plan is to return home at the completion of his studies and go into business for himself. He states he is the founder of a social media marketing company and runs a small entertainment business in Mongolia. He will pursue these businesses in Mongolia. He is interested in technology and marketing, including social media. The social media marketing course is designed to provide him with skills and knowledge he will not be able to learn in his home country and are likely to assist him in his future business. The delegate’s decision confirms that the applicant’s chosen courses are of value to his future, being courses that are applicable to his education and career path and at a higher level of education than he had previously undertaken. In the circumstances I accept that the applicant’s proposed study is consistent with his level of education and likely to improve his employment prospects in his home country. It follows that I consider it is likely to increase his level of remuneration in his home country. In the circumstances I accept that the applicant’s courses have value to his future. It is in the applicant’s favour that he continued to study in Australia and applied himself, notwithstanding the refusal of his application by the delegate and the uncertainty surrounding the outcome of this application.

Ratio Decidendi

Legal Principle Established

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