1502508 (Migration)

[2015] AATA 3209

1502508 (Migration) [2015] AATA 3209 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mae Alipo-On

CASE NUMBER:  1502508

DIBP REFERENCE(S):  CLF2014/139315

MEMBER:Gabrielle Cullen

DATE:23 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2015 at 3:38pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 February 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 December 2014 to undertake study in Australia. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and the subclass for which the type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Migration Regulations 1994). The relevant subclass in this case is Subclass 572.

3. On 8 December 2014 the delegate requested the primary applicant provide exceptional reasons for the grant of the visas.

4. On 7 January 2015 the applicant indicated she chose to study a Diploma of Travel and Tourism because she has always had a passion for travel and the travel she has done, including coming to Sydney has opened her eyes. She said her Australian school has a good location, is close to where she lives and has a good reputation. She claims she wants to study in Australia as her sister and brother-in-law will cover all her expenses, Australia provides a high quality lifestyle and good education. She claims Travel and Tourism is relevant to her academic and employment background, having studied a Bachelor of Arts major in Foreign Services. She claims her future career path is as a flight attendant or travel agent and her ultimate goal is having her own travel agency specialising in Australian and Pilipino travel. She claims earning a Diploma in Travel and Tourism would give her the knowledge and confidence to gain employment and then to open her own business.

5. The delegate refused to grant the visas on 3 February 2015 because the applicant did not satisfy the requirements of cl.572.227 of Schedule 2 to the Regulations on the basis she had not established exceptional reasons for the grant of the student visa as at the time of application she was the holder of a Subclass 600 tourist visa and based on her country of nationality and her course of proposed study she is subject to assessment level 3.

6. On 19 February 2015 the applicant applied to the Tribunal for review of the delegate’s decision.

7. On 20 May 2015 the applicant provided additional evidence and provided evidence as to why she wishes to study in Australia and why she meets cl.572.227.

   ·She claims she met a friend in Church, who had ongoing studies in Bridge Business College and she was encouraged to study in Australia. She saw it as an opportunity to learn something new and meet friends.

   ·The degree of Travel and Tourism relates to her previous degree of Bachelor of Arts, Major in Foreign Service.

   ·The unique approach of education study in Australia attracted her to study in Australia.

   ·Her sister and brother-in-law are citizens and support her emotionally and financially. Her brother-in-law is a senior mechanical engineer in Memjet Co.

   ·Her passion is learning about new and different cultures and she wishes to pursue a career in the travel industry which the current study would help.

   ·Her studies are going well.

   ·Studying in Australia would help her to practice and develop her language skills.

   ·Her ultimate goal is to have a travel agency and obtaining an Australian Diploma in Travel and Tourism would assist in her goal.

   ·She also wishes to apply as a flight attendant in the Philippines and being able to complete a Tourism Diploma is a huge advantage. She claims employers are seeking those who have studied abroad.

8. Also included was a letter from the applicant’s sister and brother-in-law indicating they invited the applicant to come to Australia to spend time with family and to assess the possibility of studying in Australia. They indicate that they fully support the applicant financially and they are very close to her. They claim she is an active member the church and it was only through meeting a friend there that she decided she wanted to stay and study in Australia. They comment on the excellence of the school. They claims she is a hardworking student, never misses a class and they know she will finish her studies and that it will be of great assistance to her in the job market when she returns to the Philippines.

9. Evidence has been provided that the applicant is successfully completing the subjects in the Diploma of Travel and Tourism due to finish on 10 December 2016.

10. Another letter was also provided by the applicant’s sister indicating that the applicant’s mother is the sole breadwinner and allowing the applicant to study in Australia would assist her with her job opportunities and give back to their mother who has made so many sacrifices. She indicated the applicant will not be a burden to the Australian government.

11. The applicant appeared before the Tribunal on 22 July 2015 and gave evidence. The applicant’s sister also gave evidence. When it was explained that she is required to show exceptional reasons for the grant of the visa to meet cl. 572.227, the applicant indicated she is a genuine student and provided documents to support this. She outlined why the course is important to her future as a flight attendant and in opening a tourism business in the Philippines as described above. She indicated that studying in a multicultural country will also assist her to understand other nationalities and cultures and being in Australia will be good for her English. She repeated that she is staying with her sister and brother-in-law.

12. The applicant’s sister indicated that it is a huge blessing coming from the Philippines to live in Australia, and that she wanted to provide these opportunities to the applicant to help her achieve her goals and dreams, She said it is part of their culture to look after their family and therefore her sister. She begged immigration and the Tribunal to give the applicant a chance to remain in Australia.

13. The Tribunal while indicating it accepted the applicant was a genuine student questioned whether the evidence indicated these were exceptional reasons for the grant of a student visa as they did not seem unique or exceptional.

    RELEVANT LAW

14. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.227. Clause 572.227 relevantly states:

    If:

    (a)      the application was made ; and
    (b)      subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and
    (c)      at the time of application, the applicant met the requirements of clause 572.211:
    [(i) amended by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]

    (i)      as the holder of a visa of one of the following classes or subclasses:
    (A)      Border (Temporary) (Class TA);
    (B)      ;
    (C)      ;
    (D)      ;
    (E)      Electronic Travel Authority (Class UD);
    (F)      ;
    (G)      ;
    (H)      ;
    [(I)      ; omitted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
    (IA)      Maritime Crew (Temporary) (Class ZM);
    (J)      ;
    (K)      Retirement (Temporary) (Class TQ);
    [(L)      ; omitted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
    (LA)      Superyacht Crew (Temporary) (Class UW);

    (M)      ;
    (N)      Temporary Business Entry (Class UC);
    [(NA) substituted by SLI 2013, 32 with effect on and from 23/03/2013 - new text - LEGEND note]
    (NA)      Subclass 400 (Temporary Work (Short Stay Activity));
    [(NB) substituted by SLI 2013, 32 with effect on and from 23/03/2013 - previous (NA) - LEGEND note]
    (NB)      Tourist (Class TR);
    [(NC) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - previous (NC) - LEGEND note]
    (NC)      Visitor (Class TV);
    [(O) amended by SLI 2012, 238 with effect on and from 24/11/2012 ('or' omitted) - LEGEND note]
    (O)      Working Holiday (Temporary) (Class TZ);
    [(P) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]
    (P)      Temporary Work (Long Stay Activity) (Class GB);
    [(Q) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]
    (Q)      Training and Research (Class GC);
    [(QA) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
    (QA)      Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;
    [(R) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]
    (R)      Temporary Work (Entertainment) (Class GE);
    [(S) amended by SLI 2013, 32 with effect on and from 23/03/2013 ('or' omitted) - inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]
    (S)      Special Program (Temporary) (Class TE);
    [(T) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
    (T)      Subclass 600 (Visitor); or

    (ii)      as the holder of a special purpose visa; or
    (iii)      as the holder of a visa of one of the following subclasses:

    (A)      Subclass 303 (Emergency (Temporary Visa Applicant));
    (B)      ;
    [(BA) amended by SLI 2013, 33 with effect on and from 23/03/2103 - LEGEND note]
    (BA)      Subclass 485 (Temporary Graduate);
    (C)      Subclass (Graduate — Skilled); or

    (iv)      as a person:

    (A)      who was not the holder of a substantive visa; and
    (B)      who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);

    the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

15. The ‘exceptional reasons’ for grant criterion applies where: the visa application was made in Australia; the applicant is subject to assessment levels 2, 3, 4 or 5, at the time of application; the applicant was either: the holder of a specified temporary visa; or if the applicant did not hold a substantive visa, immediately before ceasing to hold a substantive visa, the applicant held a specified visa.

16. The term ‘exceptional reasons’ is not defined in the Act or Regulations.

17. An applicant subject to cl.572.227 must establish that there are ‘exceptional reasons for the grant of [the particular subclass of] visa’. ‘Exceptional reasons’ are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an applicant who is not subject to the restriction in the criterion, nor by deciding whether he or she departs from the ‘normal’ characteristics of the group who is subject to the restriction. When determining whether ‘exceptional reasons’ have been established, the decision-maker must assume that the visa applicant ‘should not be granted the visa unless some reasons can be positively identified which justify, in the mind of the decision-maker, the grant of the visa’. Beyond such reasons being capable of being described as ‘“exceptional’ in ‘ordinary parlance’, there is no prescriptive definition of the term. The decision-maker has ‘a nearly unconfined discretion to address the particular circumstances of the case, and to consider whether the applicant should be made an exception to a ban on the grant of the visa in Australia’. Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008) at [29], undisturbed on appeal – Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

18. Under departmental guidelines (PAM3) ‘exceptional reasons’ may include but are not limited to situations where:

    ·     there is a ‘benefit to Australia’ (for example where the ‘visa grant would improve bilateral relations or provide significant economic benefits to Australia’)

    ·     the applicant is a dependent of a departing temporary resident and has been studying in Australia for at least one year and wishes to complete her or his current course or undertake further studies

    ·     the applicant held a Class TU visa in Australia when they were granted a specified temporary visa and now wishes to undertake further study or continue their course of study

    ·     the applicant previously held a student visa and now holds a Subclass 676 (visitor) visa granted under s.351 (Ministerial intervention).

19. These guidelines are not binding upon the Tribunal but may be a relevant consideration when determining what constitutes “exceptional reasons” in the individual circumstances.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether, at the time of this decision, the applicant satisfies cl.572.227 of Schedule 2 to the Regulations for the grant of a student visa.

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

22. As the information above indicates the applicant is a citizen of the Philippines who held a subclass 600 visa, granted on 15 August 2014 and valid to 11 December 2014, at the time she applied for the student visa on 2 December 2014. Based on her course of study and country of passport the applicable assessment level is level 3 and as a result the applicant must satisfy cl.572.227 of Schedule 2 of the Regulations.

23. The Tribunal has considered the applicant’s claims and evidence about why she wishes to study in Australia. It found her to be an honest and credible witness and accepts her evidence. It accepts she is a genuine student. It appreciates that she genuinely wants to stay in Australia and study tourism and travel, and that she is completing her subjects successfully and regularly attending the College. It accepts she is being fully supported by her sister and brother-in-law who are citizens of Australia. It accepts that she is forming relationships with her family in Australia and that staying and studying in Australia will be good for her English and learning of other cultures. It accepts as true all the reasons she wishes to stay and study in Australia. It accepts she applied onshore as she became close to a friend in Church. It accepts she has complied with all her visa conditions and her family are supportive of her study.

24. However, as explained to her at the hearing, the relevant clause places a requirement that there have to be exceptional reasons and it seems the reasons she has put forward could apply to many students and persons wanting to stay in Australia. 

25. The Tribunal is not satisfied that the reasons provided by the applicant are exceptional reasons for the grant of a Class TU visa.  It accepts that studying here would be beneficial for her future employment prospects, her English, cultural understanding and family relationships. It accepts studying in Australia will be a great opportunity to her and that she will be fully supported. It accepts she is genuinely enrolled in the current courses and wishes to complete these courses for the reasons she claims. 

26. However the Tribunal is of the view that the reasons she has put forward are not exceptional or unique and apply to many students wishing to remain in Australia and those with family in Australia.

27. The Tribunal has considered the claims presented by the applicant individually and cumulatively, however, on the evidence before it, does not accept that exceptional reasons for the grant of the visa have been established.  It has also considered the evidence provided by the applicant’s sister. For these reasons, it is not satisfied that the applicant has established exceptional reasons for the grant of the visa and therefore finds that he does not satisfy cl.572.227.

28. The other subclasses within the Class TU visa class have equivalent provisions to cl.572.227.  For the reasons given above, the Tribunal also finds that the applicant does not meet the requirements for these subclasses.  Accordingly, the decision under review must be affirmed.

29. Furthermore, there is no evidence that the applicant meets the criteria for a either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Class TU visa. The applicant is neither supported by the AusAID or Defence Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

30. For these reasons, the decision under review must be affirmed.

    DECISION

31. The Tribunal affirms the decisions not to grant the applicant a Student (Temporary) (Class TU) visas.

    Gabrielle Cullen
    Member