Rathod (Migration) - [2021] AATA 2236

Rathod (Migration) [2021] AATA 2236 (9 July 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Shaliendrasinh Mahendrasinh Rathod
Mr Rinal Shalendrasinh Ratod
CASE NUMBER:  1923375
DIBP REFERENCE(S):  BCC2019/3211293
MEMBER:Deputy President J.L Redfern PSM
DATE OF DECISION:  9 July 2021
DATE CORRIGENDUM
SIGNED:12 July 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

In paragraph 19, “s.359C(2)” should be replaced with “s.359C(1)”, so that the decision reads as follows:

“19…However, s.360(2) of the Act provides exceptions to this requirement if the Tribunal decides it can make a favourable decision on the material before it, the applicant consents to the review without appearing or, relevant to the facts of this case, s.359C(1) of the Act applies…”

J.L Redfern PSM
Deputy President

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Shaliendrasinh Mahendrasinh Rathod
Mrs Rinal Shalendrasinh Rathod
CASE NUMBER:  1923375
HOME AFFAIRS REFERENCE(S):          BCC2019/3211293
MEMBER:Deputy President J.L Redfern PSM
DATE:9 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 9 July 2021 at 5:20 PM
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – whether the applicants meet the criteria for enrolment and the genuine temporary entrant criterion – applicants invited to provide information under s.359(2) of the Act – loss of entitlement to a hearing – PRISMS search – notice issued under s.359A of the Act – no response received – main applicant found to not be enrolled in a course of study – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth), ss. 65, 359, 359A, 359C, 360, 363A, 379A and 499
Migration Regulations 1994 (Cth), Sch 2 cl.500.2, cl.500.3
CASES
Bala v Minister for Immigration and Border Protection [2019] FCA 600
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40
Singh v Minister for Immigration & Anor [2018] FCCA 3423
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 69, 18 April 2016
President’s Direction, Conducting Migration and Refugee Reviews, 1 August 2018
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 August 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
I affirm the decision under review. My reasons follow.
BACKGROUND AND RELEVANT LAW
The first named applicant is a 34-year old national from India. He applied for a student visa on 26 June 2019. His spouse, Rinal Shalendrasinh Rathod, who is the second named applicant, was included in the application as a member of his family unit.
At the time of the application for the student visa, the first and second named applicants were on visitor visas. The first named applicant provided evidence to the Department that he was enrolled in three courses, being Certificate III Light Vehicle Mechanical Technology, Certificate IV…

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.

Continue reading Rathod (Migration)

Details

AGLC: Rathod (Migration) [2021] AATA 2236
Case: [2021] AATA 2236
Decision Date: 9 July 2021

CaseChat Overview and Summary

This matter concerned an appeal by the first and second named applicants, nationals of India, against the refusal of their applications for a Subclass 500 (Student) visa. The first applicant, a 34-year-old individual with prior tertiary qualifications in India, applied for the visa to undertake automotive studies in Australia, stating an intention to establish his own workshop upon return. His spouse was included as a member of the family unit. The primary criteria for the visa, as set out in Schedule 2 of the Migration Regulations 1994, included requirements relating to enrolment in a registered course of study, financial capacity, and being a genuine applicant for entry and stay as a student.

The court was required to determine whether the first applicant was enrolled in a course of study at the time of the decision, whether he was a genuine applicant for entry and stay as a student, and whether the second applicant met the relevant criteria. The Department had issued a notice under s.359A of the Act, inviting the applicants to provide information after a PRISMS search indicated the first applicant's enrolment in three courses had been cancelled and that he was not currently enrolled. Despite being given an opportunity to respond, the applicants failed to do so.

The Deputy President found that the PRISMS search results, which showed the cancellation of all three courses the applicant had enrolled in and no current enrolment, were not disputed by the applicants. As the applicants bore the onus of satisfying the Tribunal that they met the relevant criteria and had failed to provide any evidence to counter the PRISMS findings, the Deputy President was not satisfied that the first applicant was enrolled in a course of study at the time of the decision. Consequently, the criterion under clause 500.211 of Schedule 2 to the Regulations was not met, rendering it unnecessary to consider the genuine temporary entrant criterion.

Given that the primary criteria for the Subclass 500 (Student) visa were not met, and the applicants did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the Deputy President affirmed the decision under review. The Tribunal therefore affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Orders

Orders of the court

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Background

Background to the litigation

I affirm the decision under review. My reasons follow.BACKGROUND AND RELEVANT LAW The first named applicant is a 34-year old national from India. He applied for a student visa on 26 June 2019. His spouse, Rinal Shalendrasinh Rathod, who is the second named applicant, was included in the application as a member of his family unit. At the time of the application for the student visa, the first and second named applicants were on visitor visas. The first named applicant provided evidence to the Department that he was enrolled in three courses, being Certificate III Light Vehicle Mechanical Technology, Certificate IV Automotive Mechanical Diagnosis and Diploma of Automotive Technology. In a letter provided to the Department in support of the application for the visa, the applicant stated that he was undertaking the study to establish his own automotive workshop in India. It was also recorded in his application that the applicant was a teacher and he had previously completed the following degrees in India: Bachelor of Arts (Special) 2007, Master of Arts (English) 2009, Bachelor of Education (Advanced) 2010 and Master of Education 2011. These latter degrees were said to have been conferred from the Sardar Patel University, India. The applicant also provided details of his marriage. There appears to be no dispute that the first named applicant and the second named applicant are married 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. For the visa to be granted, the applicant is required to meet the primary criteria set out in clause 500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). These criteria include requirements relating to enrolment (cl.500.211), access to funds and financial capacity (cl.500.214) and being a genuine applicant for entry and stay as a student (cl.500.212). All criteria must be satisfied at the time a decision is made on the application. The applicant must also satisfy health insurance and public interest criteria and, if required by the Minister, to satisfy specified English proficiency requirements.[1] [1] Clauses 500.215, 500.213 and 500.217 respectively of Schedule 2 to the Regulations. Clause 500.211 provides that an applicant must meet one of the alternative grounds contained in the clause, including the requirement to be enrolled in a ‘course of study’ which is defined in cl. 500.111 to mean, amongst other things, study in a full-time ‘registered course'. A ‘registered course’ means a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students (reg 1.03 of the Regulations). Clause 500.212 requires that the applicant be a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily[2] and intends to comply with any condition this subject to which the visa is granted.[3] There is a further requirement that the applicant meet any other relevant matter.[4] There are no other relevant matters prescribed and this is a broad provision which allows the decision-maker to have regard to other relevant factors that might indicate the applicant is not a genuine student. Departmental guidelines, which are not binding but instructive, state that the decision-maker should only refuse to grant a visa under cl.500.212(c) if the applicant satisfies all other Schedule 2 criteria, including the genuine temporary entrant criterion. [2] Clause 500.212(a) of Schedule 2 to the Regulations.[3] Clause 500.212(b) of Schedule 2 to the Regulations.[4] Clause 500.212(c) of Schedule 2 to the Regulations.

Evidence

Evidence Before The Court

In the absence of any response, I have decided to proceed to determine the review on the basis of the material provided by the applicant to the Department and to the Tribunal and the results of the PRISMS search.CONSIDERATION OF CLAIMS AND EVIDENCE In this case the applicant does not claim to meet any of the alternative criteria in cl.500.211. As such, the issues for determination in this case are:(1)Whether at the time of this decision, the first named applicant is enrolled in a course of study such that cl.500.211 is met, and(2)If so, whether the first named applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a) and(3)If so, whether the second named applicant meets the requirements of cl.500.311. The PRISMS search dated 28 May 2021 reveals that the first named applicant enrolled in three courses and has had his enrolment cancelled in all three. The Certificate III Light Vehicle Mechanical Technology course was due to commence on 1 July 2019 and finish on 28 June 2020. This course is recorded as cancelled. The Certificate IV Automotive Mechanical Diagnosis course was due to commence on 27 July 2020 and to finish on 24 January 2021. This course is also recorded as cancelled. The Diploma of Automotive Technology course was due to commence on 22 February 2021 and finish on 26 September 2021. This course is also recorded as having been cancelled. In summary, the PRISMS search reveals the applicant is not currently enrolled in a course and failed to complete any course. The results of this search that the first named applicant was not enrolled were disclosed to the applicants and they were invited to comment or respond to this by letter dated 31 May 2021. They did not do so by the nominated date or at all. There is no evidence before me to suggest that the PRISMS record is incorrect and that the first named applicant is currently enrolled in a course of study. Ultimately, it is for the applicants to satisfy the Tribunal that they meet the relevant criteria. The Tribunal has raised with them the critical issues in respect of which it required information and evidence. The applicants have been given two opportunities to provide this information but have not done so. Apart from filing the application for review nearly two years ago, the applicants have not provided any further material or otherwise engaged with the review. Based on the material before me, I am therefore not satisfied that at the time of this decision, the first named applicant is enrolled in a course of study and accordingly I find that cl.500.211 is not met. The first named applicant does not meet cl.500.211 and it is therefore unnecessary for me to consider whether he meets the requirements of cl.500.212 to determine this review. This is because, even if I was satisfied he is a genuine applicant for entry and stay as a student, which may be impacted by any findings about the failure to be enrolled, he cannot meet the requirements of the visa under Part 500.2 of Schedule 2 to the Regulations.

Decision

Reasons for decision

Given the above findings, I find that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.J.L Redfern PSMDeputy President

Ratio Decidendi

Legal Principle Established

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