Shrestha (Migration) - [2022] AATA 1517

Shrestha (Migration) [2022] AATA 1517 (31 March 2022)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Sunil Shrestha
CASE NUMBER:		2118101
REPRESENTATIVE:		Shambhu Kadel (MARN: 1386072)
HOME AFFAIRS REFERENCE:		BCC2020/2609251
MEMBER:		Dr Jason Harkess
DATE:		31 March 2022
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal remits the application for reconsideration, with the direction that the Applicant meets the following criteria for a Student (Temporary) (Class TU) (Subclass 500) visa: cls. 500.211 and 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth).·

Statement made on 31 March 2022 at 4:09pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – IMMI 18/015 – Pearson Test of English Academic (PTE) – enrolment status – Confirmation of Enrolment (COE) – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.213

INTRODUCTION AND OVERVIEW

Visa Refusal – Application for Review

The Applicant is a citizen of Nepal and is 29 years old. He seeks review of a decision made by a delegate of the Minister refusing to grant him a student visa.
The Applicant applied for his visa on 9 November 2020. The visa application was refused by the delegate on 16 November 2021. The Applicant lodged his review application with the Tribunal on 2 December 2021. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant his visa.[1]
[1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this

Type of Visa

The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
[2] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.
If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis. For the visa to be granted, the Applicant must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[3]
[3] See Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

Reasons for Refusal

The student visa was initially refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.213 of Schedule 2 of the Regulations. The delegate was not satisfied that he met the English language requirements for this visa.
The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa application had been refused.[4] The Applicant also provided a copy of that decision record to the Tribunal when he lodged his review application.
[4] Notification was given in accordance…

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 Shrestha (Migration)

Details

AGLC: Shrestha (Migration) [2022] AATA 1517
Case: [2022] AATA 1517
Decision Date: 31 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered an appeal by Mr Shrestha concerning the refusal of his Student (Temporary) (Class TU) visa, subclass 500. The refusal was based on the applicant's alleged failure to meet the English language proficiency requirements as stipulated by IMMI 18/015, specifically in relation to his Pearson Test of English Academic (PTE) results and his enrolment status.

The primary legal issue before the Tribunal was whether Mr Shrestha had satisfied the English language proficiency requirement for the visa application. This involved determining the validity and relevance of his PTE test results in light of his enrolment status at the time of the test and the requirements of the relevant legislative instrument.

The Tribunal reasoned that the Department of Home Affairs had erred in its assessment of Mr Shrestha's English language proficiency. It found that the PTE test results were valid and met the required standard, and that the applicant's enrolment status at the time of the test did not invalidate those results for the purpose of the visa application. Consequently, the Tribunal set aside the delegate's decision and remitted the matter to the delegate for reconsideration according to law.

Orders