Venkatagala Yadaiah (Migration) - [2021] AATA 2235

Venkatagala Yadaiah (Migration) [2021] AATA 2235 (7 July 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Madhu Babu Venkatagala Yadaiah
CASE NUMBER:  1923377
DIBP REFERENCE(S):  BCC2019/3507695
MEMBER:Deputy President J.L Redfern PSM
DATE OF DECISION:  7 July 2021
DATE CORRIGENDUM
SIGNED:12 July 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

In paragraph 16, “s.359C(2)” should be replaced with “s.359C(1)”, so that the decision reads as follows:

“16…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:  Mr Madhu Babu Venkatagala Yadaiah
CASE NUMBER:  1923377
HOME AFFAIRS REFERENCE(S):          BCC2019/3507695
MEMBER:Deputy President J.L Redfern PSM
DATE:7 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 7 July 2021 at 2:12 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 19 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 32-year-old national from India. He applied for the visa on 13 July 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.
For the visa to be granted, the applicant is required to meet the primary criteria set out in cl.500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). These criteria include requirements relating…

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 Venkatagala Yadaiah (Migration)

Details

AGLC: Venkatagala Yadaiah (Migration) [2021] AATA 2235
Case: [2021] AATA 2235
Decision Date: 7 July 2021

CaseChat Overview and Summary

This matter concerned an application for a Subclass 500 (Student) visa by an Indian national. The applicant sought to undertake study in Australia and did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. The primary criteria for the Subclass 500 visa included requirements relating to enrolment in a registered course of study, financial capacity, and being a genuine applicant for entry and stay as a student. The court was required to determine whether the applicant met the enrolment criterion and, if so, whether the applicant was a genuine temporary entrant.

The court's reasoning focused on the applicant's enrolment status. A search of the Student and Exchange Visitor Program (SEVP) certified school database (PRISMS) revealed that the applicant had been enrolled in multiple courses since 2015, with 10 enrolments cancelled for reasons including non-payment of fees and failure to commence studies. The applicant had completed a Diploma of Leadership and Management in March 2017 and a Certificate IV in Commercial Cookery in November 2020. Crucially, the PRISMS search indicated that the applicant was not currently enrolled in any course of study. The applicant was invited to provide information or respond to this finding but failed to do so.

Based on the available material, including the PRISMS search and the lack of response from the applicant, the court was not satisfied that the applicant was enrolled in a course of study at the time of the decision. Consequently, the court found that the applicant did not meet the enrolment criterion under clause 500.211 of the Migration Regulations 1994. As this criterion was not met, it was unnecessary to consider the genuine temporary entrant criterion. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I affirm the decision under review. My reasons follow.BACKGROUND AND RELEVANT LAW The applicant is a 32-year-old national from India. He applied for the visa on 13 July 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. For the visa to be granted, the applicant is required to meet the primary criteria set out in cl.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. In considering whether an 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 requires a decision-maker, including the Tribunal, to have regard to a number of specified factors, although it is important to note that the Direction indicates it should not be used as a ‘checklist’, but rather the matters it lists are intended to guide decision makers when considering the applicant’s circumstances as a whole and reaching a finding about whether they satisfy the genuine temporary entrant criterion.[5] This was confirmed in Nguyen v MIBP [2013] FCCA 1864 and more recently in Singh v MIBP [2018] FCCA 3423 where the Court found that the previous direction, which included a similar provision as contained in Direction No. 69, is not intended to be construed as a checklist but the factors are all matters for the decision-maker ‘to think about and weigh up’.[6] The Federal Court provided further helpful guidance on this issue in Bala v MIBP [2019] FCA 600 where the Court found that, even though the Tribunal decision did not specifically refer to certain factors included in the direction, it did not follow that those factors were not considered and in the circumstances of the case:.. it is reasonable to infer that matters not mentioned were considered, though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.[7][5] Direction No 69, Part 2 at [1].[6] Singh v MIBP [2018] FCCA 3423 at [17] and [18].[7] Bala v MIBP [2019] FCA 600 at [17]–[18].

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, the response provided by his migration agent and the results of the PRISMS search. The applicant did not provide any further material to the Tribunal at the time he lodged his application for review, other than a copy of his passport.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 12 courses since March 2015 until June 2021. The applicant has had his enrolment cancelled in 10 of the courses for various reasons, including non-payment of fees and failure to commence studies. He completed a Diploma of Leadership and Management in March 2017 over a period of 12 months and a Certificate IV in Commercial Cookery in November 2020, also over a period of 12 months. In summary, the PRISMS search reveals the applicant is not currently enrolled in a course and completed his most recent studies in November 2020. An updated PRISMS search conducted the day before this decision is in the same terms and, as such, nothing has changed since the invitation was sent to the applicant on 31 May 2021. There is nothing in this more recent search that discloses new information, other than it confirms the applicant is not enrolled in a course of study at this time. In other words, this updated search confirms that the applicant was not enrolled which has already been disclosed. The applicant was invited to comment or respond to this by letter dated 31 May 2021 and he 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. 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 cl.500.211 is not met. The applicant does not meet cl.500.211 and it is therefore unnecessary for me to consider whether he meets the requirements of cl.500.212 to determine this review. This is because, even if I was satisfied he is a genuine applicant for entry and stay as a student, which may be impacted by any findings about the failure to be enrolled, he cannot meet the requirements of the visa under Part 500.2 of Schedule 2 to the Regulations. 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

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

Full text does not contain this section.