ROYALES (Migration) - [2020] AATA 2809

ROYALES (Migration) [2020] AATA 2809 (22 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rosalie ROYALES
CASE NUMBER:  1825545
HOME AFFAIRS REFERENCE(S):          BCC2018/2680323
MEMBER:D Triaca
DATE:22 April 2020
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 22 April 2020 at 11:32am

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 August 2018 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 18 July 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 18 March 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 applicant in connection with this application for review.
On 31 March 2020 the applicant requested an extension of time to comply with the Tribunal’s request. The Tribunal subsequently granted the applicant’s request. On 16 April 2020 the applicant provided further information and supporting documentation to the Tribunal (359 Response) and consented to the Tribunal determining the application without a hearing.
The Tribunal finds that the applicant did not provide further information as requested. 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…

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 2809
Decision Date: 22 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Royales (Migration), involving an applicant from the Philippines seeking review of a decision to refuse her Subclass 500 (Student) visa. The applicant had arrived in Australia on a tourist visa and subsequently applied for a student visa, enrolling in English language and business courses. The delegate's decision had raised concerns about the timing of the student visa application after arrival on a tourist visa and a perceived change of plans.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the "genuine applicant for entry and stay as a student" requirement under clause 500.212 of Schedule 2 to the Regulations. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily, considering her circumstances in her home country, her immigration history, and any other relevant matters, as guided by Direction No. 69. The Tribunal also had to consider the ordinary meaning of "genuine," which implies an authentic and true intention to stay for a limited time only.

The Tribunal reasoned that while the applicant's onshore application after arriving on a tourist visa was noted, her youth, lack of dependents, and the fact that applying for a student visa while onshore is permissible under the regulations, meant no adverse findings were made on this point. The Tribunal found it not unrealistic that she made a spontaneous decision to study upon arrival. The applicant's progression through English and business courses, including a Certificate IV in Business, was viewed favourably, indicating a genuine intention to study for educational benefits. The Tribunal accepted that these courses would likely improve her employment prospects in her home country, thereby increasing her potential remuneration.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration, implying that the applicant had demonstrated a genuine intention to study and that the proposed courses held value for her future.

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

The applicant is a 21 year old citizen of the Philippines. She first arrived in Australia on 19 June 2018 on a tourist visa. She applied for a student visa on 18 July 2018. On 15 August 2018 a delegate of the Department refused her application (delegate’s decision). On 3 September 2018 she applied to the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of that decision. The Tribunal has read and had regard the applicants’ 359 Response and supporting documents, the delegate’s decision, a GTE Statement from April 2020; Letter of the applicant’s migration agent; application for a student visa dated 18 July 2018; GTE Statement; Certificate of Overseas Health Cover (OSHC); Passport extract identification evidence. The applicant has resided in Australia for a relatively short period of time. She arrived on a tourist visa and shortly after applied for a student visa and enrolled in a General English course at Astley English College. She has subsequently enrolled in a Certificate IV of Business at Orange Education and a Diploma of Business due to be completed in 2022. The delegate’s decision is critical of the applicant applying for a student visa for a student visa such a short time after arriving in Australia on a tourist visa, noting that the applicant has changed her plans upon arrival. However, I consider that the applicant is relatively young, has no dependents and it is not unrealistic that she made a spontaneous decision to study once arriving in Australia and realising the extent of potential study pathways in Australia. Applying for a student visa once onshore is not prohibited under the regulations and the Tribunal does not make any adverse findings against her in regard to the timing of her application. Shortly after arriving in Australia, the applicant commenced studying in a General English course. She provided the Tribunal with a copy of her Certificate in Upper Intermediate English from Astley English College issued in July 2019. She provided a Confirmation of Enrolment in a Certificate IV in Business and a Diploma of Business. She is currently studying the Certificate IV in Business at Eve College. It is in the applicant’s favour that she embarked on studying in Australia despite the delegate’s decision and the uncertainty as to whether she would ultimately be granted a student visa. This is indicative of an intention to study for the educational benefits of her chosen courses. Having regard to the applicant’s academic pathway, the Tribunal considers the applicant appears to be doing what a student on a student visa ought to be doing, that is studying in approved courses and progressing academically. The Tribunal accepts that there is value to the applicant’s future in having successfully completed an English course and studying a Certificate and Diploma of Business. These courses are designed to provide the applicant with a knowledge base that can be deployed to solve disparate challenges and ought to improve the applicant’s employment prospects in her home country. It follow that the Tribunal considers that the successful completion of the proposed courses is likely to increase the remuneration the applicant could expect to receive in her home country or a third country.

Ratio Decidendi

Legal Principle Established

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. 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] See [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