Sodhi (Migration) - [2021] AATA 2698

Sodhi (Migration) [2021] AATA 2698 (10 June 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Jasvinder Singh Sodhi
CASE NUMBER: 1933953

HOME AFFAIRS REFERENCE(S): BCC2019/4836365

MEMBER: D Triaca

DATE: 10 June 2021

PLACE OF DECISION: Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 10 June 2021 at 3:53pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met – lack of academic progress over an extended period – unable to complete any of the courses he has commenced – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

CASES
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 November 2019 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 26 September 2019. 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).

The applicant appeared before the Tribunal on 31 March 2021 to give evidence and present arguments.

The applicant was assisted in relation to the review by their registered migration agent.

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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…

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: [2021] AATA 2698
Decision Date: 10 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Department of Home Affairs to refuse an Indian citizen, the applicant, a Student (Temporary) (Class TU) visa, subclass 500. The applicant had been in Australia since August 2014 on a series of student and bridging visas. The delegate's decision to refuse the visa application, made on 18 November 2019, was the subject of the tribunal's review.

The primary legal issue before the Tribunal was whether the applicant met the genuine temporary entrant (GTE) criterion for the student visa. This involved assessing the applicant's history of academic progress, or lack thereof, over an extended period of study in Australia, and determining if his intentions were genuinely to study temporarily in Australia.

The Tribunal considered extensive documentation, including the delegate's decision, the applicant's visa application, oral evidence, written submissions, and various enrolment and academic records. While the applicant provided evidence of completing a Certificate III in Commercial Cookery in May 2021, the Tribunal noted a pattern of extended periods without academic progress and the cancellation of multiple course enrolments. The applicant's academic history included an English course in 2014, followed by multiple attempts at Certificate IV in Business, Diploma of Management, Diploma of Leadership and Management, and a Bachelor of Business, with significant interruptions and transfers between institutions. The Tribunal found that the applicant had been unable to complete any of the courses he had commenced over an extended period, which weighed against him meeting the GTE criterion.

The Tribunal affirmed the delegate's decision to refuse the student visa application.

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 issues in this case arose in the following circumstances, the applicant is a 27 year old citizen of India. He first arrived in Australia on 7 August 2014. He has resided here since that time on a series of student and associated bridging visas. On 26 September 2019 he applied for a student visa. On 18 November 2019 a delegate of the Department refused his application (delegate’s decision). He subsequently applied to the tribunal for a review of the delegate’s decision and he provided the tribunal with a copy of that decision. The tribunal has concluded that the decision to refuse the applicant a student visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:(a)The delegate’s decision record;(b)The applicant’s original written visa application;(c)The oral evidence and arguments of the applicant presented at the hearing;(d)All written material filed by or on behalf of the applicant in relation to this case;(e)Other relevant documents on the Tribunal and Department files;(f)Applicant’s written response to the tribunal’s invitation to provide further information pursuant to s.359(2) of the Act (359 Response);(g)Confirmation of Enrolment documents and evidence of study, including evidence of enrolment Aveta College 18 January 2021;(h)Written submissions filed on behalf of the applicant;(i)GTE Statement in relation to application for a student visa;(j)Further Submissions and supporting documents filed after the hearing, with leave of the tribunal. Following the further submissions, the applicant provided further evidence of completion of the Certificate III in Commercial Cookery at Australian Vocational Education and Training Academy dated 6 May 2021. The tribunal has read and had regard to this additional material. It is in the applicant’s favour that he completed this course on schedule. The applicant’s academic record is set out in his GTE Statement and 359 Response as follows. He completed an English for Academic Purposes course at Union Institute of Language in November 2014. He enrolled in a Certificate IV in Business In August 2015 he transferred to Holmes Institute and his previous enrolments at James Cook University were cancelled. He enrolled in a Certificate IV in Business ad Diploma of Management due to conclude in August 2016. He reports that in May 2016 Holmes ceased providing the Diploma of Management and he was subsequently enrolled in a Diploma of Leadership and Management followed by a Bachelor of Business commencing on 6 November 2017. He says he felt that he did not get sufficient support at Holmes Institute. In May 2016, whilst studying the Diploma of Management his Confirmation of Enrolment was cancelled. He was told that he would have to start the Diploma of Leadership and Management again without any recognition of prior learning. He returned to India for a short period between 22 February 2017 to 1 March 2017 on account of his grandmother passing away.

Ratio Decidendi

Legal Principle Established

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