Shrestha (Migration) - [2021] AATA 2233

Shrestha (Migration) [2021] AATA 2233 (9 July 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Pratikshya Shrestha
CASE NUMBER:  1922447
DIBP REFERENCE(S):  BCC2019/3137014
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 17, “s.359C(2)” should be replaced with “s.359C(1)”, so that the decision reads as follows:

“17…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
APPLICANT:  Mrs Pratikshya Shrestha
CASE NUMBER:  1922447
HOME AFFAIRS REFERENCE(S):          BCC2019/3137014
MEMBER:Deputy President J.L Redfern PSM
DATE:9 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 9 July 2021 at 5:20 PM
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – whether the applicant meets the criteria for enrolment and the genuine temporary entrant criterion – applicant 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 – 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
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 6 August 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
I affirm the decision under review. My reasons follow.
BACKGROUND AND RELEVANT LAW
The applicant is a 34-year-old national from Nepal. She applied for a student visa on 21 June 2019. In her application for the visa, the applicant stated that she had visited family in Australia in 2018 on a visitor visa and returned in April 2019, again on a visitor visa, and decided to study in Australia with an education provider in Brisbane. In support of her application, the applicant stated that she wanted to develop her English skills. She had experience as a therapist and yoga teacher but was interested in developing her cooking skills so that when she returned…

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) [2021] AATA 2233
Case: [2021] AATA 2233
Decision Date: 9 July 2021

CaseChat Overview and Summary

The applicant, a national of Nepal, sought review of a decision not to grant her a Subclass 500 (Student) visa. The applicant had applied for the visa to undertake a course of study in Australia, intending to develop her English skills and pursue qualifications in commercial cookery and hospitality management. The core of the dispute revolved around whether the applicant met the mandatory criteria for the visa, specifically those relating to enrolment in a registered course of study and being a genuine applicant for entry and stay as a student.

The court was required to determine two primary legal issues. Firstly, whether the applicant was enrolled in a course of study at the time of the decision, as required by clause 500.211 of Schedule 2 to the Migration Regulations 1994. Secondly, if she met the enrolment criterion, whether she was a genuine applicant for entry and stay as a student, as stipulated by clause 500.212(a) of Schedule 2. The court noted that all criteria must be satisfied at the time a decision is made on the application.

The court's reasoning focused on the evidence presented, particularly the results of a PRISMS search which indicated that the applicant's previous enrolments in three courses had all been cancelled on 21 December 2019, with no current enrolment recorded. The applicant was invited to respond to this information but failed to do so. The court applied the principle that it is for the applicant to satisfy the Tribunal that they meet the relevant criteria. As the applicant did not provide evidence to demonstrate current enrolment, the court found that clause 500.211 was not met. Consequently, it was unnecessary to consider the genuine temporary entrant criterion.

Given the finding that the applicant did not meet the enrolment criterion, the Tribunal affirmed the decision under review. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, and therefore, the criteria for the grant of a Subclass 500 (Student) visa were not met.

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 applicant is a 34-year-old national from Nepal. She applied for a student visa on 21 June 2019. In her application for the visa, the applicant stated that she had visited family in Australia in 2018 on a visitor visa and returned in April 2019, again on a visitor visa, and decided to study in Australia with an education provider in Brisbane. In support of her application, the applicant stated that she wanted to develop her English skills. She had experience as a therapist and yoga teacher but was interested in developing her cooking skills so that when she returned to Nepal, she could merge her various skills by promoting a Mindfulness and Meditation Dinner. The applicant stated that she planned to study one year of general English, Certificate IV in Commercial Cookery and then a Diploma of Hospitality Management. 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 applicant is enrolled in a course of study such that cl.500.211 is met, and(2)If so, whether the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a). The PRISMS search dated 28 May 2021 reveals that the applicant has enrolled in three courses since 2019 all of which were cancelled on 21 December 2019. The first enrolment was in the general English course which was due to commence on 1 July 2019 and finish on 23 August 2020. It is noted that on 21 December 2019 the applicant notified of the cessation of studies in this course, which is recorded as ‘cancelled’. The second course was the Certificate IV in Commercial Cookery which was due to commence on 5 October 2020 and finish on 3 April 2022. It is recorded that on 21 December 2019 course was cancelled because of the ‘non-commencement of studies’. The third course referred to in PRISMS is the Diploma of Hospitality Management, which is recorded as commencing on 2 May 2022 and finishing on 30 October 2022. It is recorded that this course was cancelled on 21 December 2019 because of the ‘non-commencement of studies’. This suggests that the Certificate IV course was a precondition for the Diploma. 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 the applicant was not enrolled were disclosed to the applicant and she was invited to comment or respond to this by letter dated 31 May 2021. She 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 applicant is currently enrolled in a course of study. Ultimately, it is for the applicant to satisfy the Tribunal that she meets the relevant criteria. The Tribunal has raised with her the critical issues in respect of which it required information and evidence. The applicant was given two opportunities to provide this information but has not done so. Apart from filing her application for review nearly two years ago, the applicant has 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 applicant is enrolled in a course of study and accordingly I find that cl.500.211 is not met. The applicant does not meet cl.500.211 and it is therefore unnecessary for me to consider whether she meets the requirements of cl.500.212 to determine this review. This is because, even if I was satisfied she is a genuine applicant for entry and stay as a student, which may be impacted by any findings about the failure to be enrolled, she 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, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does 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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.J.L Redfern PSMDeputy President

Ratio Decidendi

Legal Principle Established

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