Shrestha (Migration) - [2020] AATA 3021

Shrestha (Migration) [2020] AATA 3021 (19 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sunita Shrestha
CASE NUMBER:  1830858
HOME AFFAIRS REFERENCE(S):          BCC2018/2507863
MEMBER:D Triaca
DATE:19 May 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 19 May 2020 at 11:48am

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 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 4 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 30 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 14 April 2020, the applicant responded to the Tribunal’s invitation in writing (359 Response) and provided documentation in support of the application. He consented to the Tribunal determining the application without a hearing.
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 applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is…

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 3021
Decision Date: 19 May 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Department of Home Affairs to refuse a Subclass 500 (Student) visa. The applicant, a citizen of Nepal, sought to study a Diploma of Leadership and Management and a Certificate IV in Leadership and Management in Australia. The delegate had refused the application on the grounds that the applicant was not a genuine applicant for entry and stay as a student.

The Tribunal was required to determine whether the applicant satisfied the primary criterion under clause 500.212 of Schedule 2 to the Migration Regulations 1994, which mandates that an applicant must be a "genuine applicant for entry and stay as a student". This involves assessing whether the applicant genuinely intends to stay in Australia temporarily and intends to comply with visa conditions. The Tribunal was guided by Direction No. 69, which outlines factors to consider, including the applicant's circumstances in their home country, potential circumstances in Australia, the value of the course to their future, and their immigration history.

The Tribunal noted that the applicant had commenced and progressed through her studies in Australia, completing a General English course and a Certificate IV in Leadership and Management, and was undertaking a Diploma of Leadership and Management. The Tribunal found that the applicant was doing what a student on a student visa ought to be doing, which weighed in favour of granting the application. The fact that she continued her studies after the visa refusal indicated a genuine interest in the educational benefits of the courses. The Tribunal also accepted that the Diploma course naturally followed from her previous studies and was consistent with her prior education.

The Tribunal concluded that the matter should be remitted 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

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Decision

Reasons for decision

The applicant is a 44 year old citizen of Nepal. She was granted a visitor visa offshore on 23 April 2018. He arrived in Australia on 16 May 2018. On 4 July 2018 he applied for a student visa, proposing to study a Diploma of Leadership and Management and a Certificate IV in Leadership and Management. Her studies were due to conclude in July 2020. On 18 October 2018 a delegate of the Department refused her application (delegate’s decision). On 22 October 2018 he 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 to the applicant’s 359 Response, the delegate’s decision, supporting documents provided by the applicant to the Department and the Tribunal including the applicant’s GTE Statement received with 359 Response; Evidence of Brother’s financial support; Property Valuation; Commonwealth Bank Statement; Confirmation of Enrolment Barton International English; Academic Transcript Tribhuvan University, Nepal; Diploma Transcript George Brown College Statement of Results; Letter from George Brown College confirming current enrolment; Certificate of Overseas Student Health Cover; GTE Statement 6 August 2018 filed with original application; IELTS Results; Letter from Invidepfo Nepal 18 July 2018; Payslip St Georges League Club; Bank Account certification 30 March 2018 and Bank Statements; Passport; Bridging Visa Information; Application for a student visa 4 July 2018. After arriving in Australia, the applicant commenced studying a General English course at Barton International College which she completed in October 2018. In November 2018 she commenced a Certificate IV in Leadership and Management at George Brown College which she completed in November 2019. She then commenced a Diploma of Leadership at George Brown College. She is due to complete this course in November 2020. She provided a letter from George Brown College dated 14 April 2020 confirming that she is currently studying that course on a full time basis and she provided a statement of results to date that confirmed she has completed two units in the Diploma course. Having regard to the evidence before the Tribunal, it is apparent that the applicant is doing what a student on a student visa ought to be doing. That is studying in approved courses and progressing academically. This weighs in favour of granting the application. It is in the applicant’s favour that she has continued her studies following the refusal of her application by the delegate and uncertainty surrounding the outcome of her application to the Tribunal. This indicates she is interested in the educational benefits of the proposed courses in addition to the substantive visa. The Tribunal accepts that the Diploma of Leadership and Management naturally follows from her recently completed Certificate IV in Leadership and Management and is consistent with her previous education. The applicant has a reasonable knowledge of living in Australia and her education provider.

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] [21] – [35][2] Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858