Singh (Migration) - [2019] AATA 2993

Singh (Migration) [2019] AATA 2993 (6 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harphool Singh
Mrs Navpreet Kaur Batth
Miss Jaskirat Kaur Mangat
CASE NUMBER:  1805185
DIBP REFERENCE(S):  BCC2017/4208143
MEMBER:Dr Jason Harkess
DATE AND TIME OF
ORAL DECISION AND REASONS:         6 June 2019 at 11:22 am (VIC time)
DATE OF WRITTEN RECORD:                25 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions under review.

Statement made on 25 June 2019 at 1:21pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– in Australia for over 10 years –immigration history – using student visa to maintain ongoing residence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 12 February 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).
At the hearing on 6 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
This is an oral statement of decision and reasons of the Administrative Appeals Tribunal, in case number 1805185, in relation to an application for review brought by Harphool Singh, being the primary applicant and two secondary applicants, Navpreet Kaur Batth, the secondary applicant who is the wife of the primary applicant and Jaskirat Kaur Mangat, who is the stepdaughter of the primary applicant and the biological child of the other secondary applicant. The secondary applicants, I should indicate, seek to have their visas granted on the basis of being members of the family unit of the primary applicant, Mr Singh.
The applicants are citizens of India. They seek review of a decision made by a delegate of the Minister for Immigration and Border Protection on the 12th of February, refusing to grant them student visas. They applied for their visas on 10 November 2017. The applicable Regulations classify this type of visa as a Student (Temporary) (Class TU) (subclass 500) visa. Such visas are issued under the general power to issue visas conferred on the Minister or his delegate, by section 65 of the Migration Act 1658. If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time, on a temporary basis. An applicant’s family members or guardian may also join in the application, so that they too are issued visas permitting them to stay in Australia for the duration of the primary applicant’s studies.
In this case, there are three applicants. The primary applicant, as mentioned above, is Harphool Singh. The secondary applicants are Navpreet Batth and Jaskirat Mangat, who claim to be members of the primary applicant’s family unit. 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: [2019] AATA 2993
Decision Date: 6 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration and Border Protection to refuse to grant Student (Temporary) (Class TU) (subclass 500) visas to Harphool Singh, his wife Navpreet Kaur Batth, and his stepdaughter Jaskirat Kaur Mangat. The applicants, citizens of India, sought review of the refusal, which was based on the primary applicant, Mr Singh, not meeting the genuine temporary entrant criterion. The secondary applicants sought visas as members of Mr Singh's family unit, meaning their applications were contingent on the primary applicant's eligibility.

The central legal issue before the Tribunal was whether Harphool Singh was a genuine applicant for entry and stay as a student, as required by clause 500.212 of Schedule 2 of the Migration Regulations 1994. The delegate had found that Mr Singh did not satisfy this criterion, leading to the refusal of all three visa applications. The Tribunal's decision therefore hinged on its assessment of Mr Singh's genuineness as a student.

The Tribunal considered Mr Singh's immigration history, noting he had been in Australia for over 10 years. The delegate's decision record, provided to the Tribunal, indicated concerns that Mr Singh was using student visas to maintain ongoing residence in Australia rather than for the genuine purpose of study. Mr Singh was the only applicant to appear before the Tribunal to give evidence and present arguments, with the hearing conducted with the assistance of an interpreter. The Tribunal affirmed the delegate's decision, finding that Mr Singh did not meet the genuine temporary entrant criterion.

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

At the hearing on 6 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.STATEMENT OF DECISION AND REASONS This is an oral statement of decision and reasons of the Administrative Appeals Tribunal, in case number 1805185, in relation to an application for review brought by Harphool Singh, being the primary applicant and two secondary applicants, Navpreet Kaur Batth, the secondary applicant who is the wife of the primary applicant and Jaskirat Kaur Mangat, who is the stepdaughter of the primary applicant and the biological child of the other secondary applicant. The secondary applicants, I should indicate, seek to have their visas granted on the basis of being members of the family unit of the primary applicant, Mr Singh. The applicants are citizens of India. They seek review of a decision made by a delegate of the Minister for Immigration and Border Protection on the 12th of February, refusing to grant them student visas. They applied for their visas on 10 November 2017. The applicable Regulations classify this type of visa as a Student (Temporary) (Class TU) (subclass 500) visa. Such visas are issued under the general power to issue visas conferred on the Minister or his delegate, by section 65 of the Migration Act 1658. If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time, on a temporary basis. An applicant’s family members or guardian may also join in the application, so that they too are issued visas permitting them to stay in Australia for the duration of the primary applicant’s studies. In this case, there are three applicants. The primary applicant, as mentioned above, is Harphool Singh. The secondary applicants are Navpreet Batth and Jaskirat Mangat, who claim to be members of the primary applicant’s family unit. It is the primary applicant, Mr Singh, who must satisfy the primary criteria as detailed in the Regulations, relating to the grant of a student visa. The outcome of the review for all of the applicants turns on whether the primary applicant meets the primary criteria under the Regulations. The reasons for the tribunal’s decision relate mainly to the primary applicant. References that I make to the applicant throughout these reasons may therefore be taken to be a reference to the primary applicant, Mr Singh only and not the secondary applicants, unless I make specific mention of the secondary applicants. In this case, the student visas were refused because the delegate found that the primary applicant did not satisfy the requirements of clause 500.212 of schedule 2 of the Regulations. The delegate did not consider him to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision record was provided to the tribunal with the review application when the applicants lodged their application for review with the tribunal. Only the primary applicant appeared before the tribunal today to give evidence and to present arguments. The tribunal hearing was conducted with the assistance of an interpreter of the Punjabi and English languages.

Ratio Decidendi

Legal Principle Established

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