1503466 (Migration)

[2015] AATA 3205

1503466 (Migration) [2015] AATA 3205 (28 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deni Dimovski

CASE NUMBER:  1503466

DIBP REFERENCE(S):  BCC2015/209192

MEMBER:George Haddad

DATE:28 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 28 July 2015 at 4:45pm

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 20 February 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 570 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 January 2015. The delegate refused to grant the visa on the basis that the applicant did not establish exceptional reasons for the grant of a Subclass 570 visa.

3. The applicant appeared before the Tribunal on 21 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies the requirements of cl.570.227.

7. On the basis of the information relating to the Subclass of visa the applicant is seeking, as the holder of a passport of FYR Macedonia and the Gazette Notice (Immi 14/014) which determines the assessment level to which the applicant is subject – assessment level 3, the Tribunal finds that the applicant is required to satisfy cl.570.227 (attached) and to establish exceptional reasons for the grant of a Subclass 570 visa. The Tribunal further finds that the applicant satisfies the requirement of cl.570.211 as he was the holder of a Visitor (Class FA) – Subclass 600 visa.

8. The applicant is a 30 year old national of the Former Yugoslav Republic of Macedonia. He first arrived in Australia with a visitor visa on 5 June 2014 valid until 12 September 2014. On 11 September 2014 he applied for and was subsequently granted a further visitor valid until 20 January 2015. On 20 January 2015 the applicant applied for a student visa on the basis of enrolment in a short English language course for which the Minister specified Subclass 570 visa.

9. The delegate invited the applicant to provide a statement in relation to the criterion in cl.570.227 and to establish exceptional reasons for the grant of the visa. The applicant responded and stated that:

   After spending time in Australia as a tourist he found that his English language skills had improved and decided that he would benefit from studying English in an English speaking country and enjoy the opportunity of experiencing international education for short time in a high standard environment. He then wishes to return to his home country.

   The review

10. In support of his application for review the applicant provided a written statement in which he states that his application for the visa should be reviewed for the following reasons::

    He is enrolled in Certificate III in EAL at Barkly International College. He commenced the course on 15 February 2015 and he will complete it on 14 August 2015. He has paid the tuition fees.

    He has enjoyed learning English and would be grateful for the opportunity to complete the course he has commenced.

11. At the Tribunal hearing, I explained the significance of the criterion relating to the review and invited the applicant to present arguments and give evidence that might establish exceptional reasons for the grant of the Subclass 570 visa.

12. The applicant gave oral evidence stating that:

    he wishes to complete his current course and go on to study electronics.

    He wishes to stay because there are good people in Australia and he likes the way this country operates.

    He wishes to continue studying and see if he can help Australia with his knowledge.

    Australia is a better country and there are better opportunities. His knowledge in electronics cannot be practised in his home country.

13. The applicant provided evidence of enrolment in Certificate III in EAL which commenced on 15 February 2015 and will end on 14 August 2015.

14. In forming a view as to whether the applicant has established ‘exceptional reasons’ to the Tribunal’s satisfaction, the Tribunal has observed the findings in Kim v Minister for Immigration and Anor [2008] FMCA 1577. In this case His Honour, Smith FM stated at paragraph 7:

    The word ‘exceptional’ has dictionary meanings: “of the nature of or forming an exception; out of the ordinary course, unusual, special” (OED).  It is commonly used in legislation when giving a decision-maker a power to identify circumstances or reasons justifying the lifting of a statutory rule, where it is intended that the rule will normally apply.  On some occasions, the considerations which are intended to identify an exceptional case are expressly or implicitly shown in the framing of the power, but in others the relevant considerations are left undefined.  In the latter situation, the decision-maker may appear to be given a very broad discretion to identify and weigh the considerations upon which he or she will decide whether to dispense with the normal rule.

15. His Honour examines the application of similar terms in legislation and the treatment of them on judicial review. At paragraphs 13 and 14 his Honour states that:

    In the present case, the normal rule is that persons holding identified classes of current visas, and with assessment levels higher than 1, are not granted this subclass of student visa if they apply while they are present in Australia.  If the dispensing power can be given structure from this context, then it should reveal what are the relevant considerations for deciding whether there are exceptional reasons for granting the visa to the applicant.  Jurisdictional error would be found, if a decision-maker strayed beyond these considerations or failed to address them.

    If a particular focus or subject matter or comparison cannot be given to an ‘exceptional reasons’ dispensing power by a process of legislative construction, then the power should be construed to be unconfined except by its general legislative context and objects…

16. After an extensive examination of the legislative scheme and instruments which underlie the requirement of clause 573.227 (in similar terms as cl.570.227) his Honour states at [29] and [30]:

    …In my opinion, it tends to confirm an intention which the complex structure of the regulations suggests.  This is that ‘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 ban imposed by cl.573.227, nor by deciding whether he or she departs from the ‘normal’ characteristics of the group who are subject to the ban. 

    Rather, the decision-maker is required to assume that a visa applicant caught by the criterion 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.  The reasons must be capable of being described as ‘exceptional reasons’ in ordinary parlance.  Beyond this, it is impossible for the Court to be generally prescriptive as to what these reasons might be, or must be, as a matter of law.  In effect, once it is concluded that the Regulations do not define the relevant circumstances for finding ‘exceptional reasons’ under cl.573.227 by providing a particular focus or comparison or subject matter, the criterion should be allowed to operate so that a decision-maker is given 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. (Tribunal emphasis)

17. I have considered the reasons the applicant has given to the delegate as exceptional. I do not find those reasons to be exceptional in the ordinary meaning of the word. In my understanding of the word It is not in exceptional to wish to experience international education or to improve English language skills through a short course in an English speaking country.

18. I have also considered the written statement and oral evidence the applicant gave to the Tribunal. The evidence which relates to the Subclass 570 visa is the certificate of enrolment in certificate III in EAL and the applicant’s statement that he would be grateful to complete the course; and his oral evidence that he wishes to finish the English language course. These too I do not find exceptional in the ordinary meaning of the word because I do not accept that it is exceptional to wish to complete a short English language course. That said however, given that the course will end on 14 August 2015, around two weeks from the time of writing; and knowing that the administrative process to follow this decision is such that the applicant will be able to complete the course.

19. In relation to his additional evidence that he wishes to go on to study further courses after completing his current course appears to relate to different subclass or subclasses of student visa for which there is no evidence of current enrolment for the Tribunal to consider. His evidence relating to remaining in Australia to see if he can help with his knowledge; and that his skills cannot be practised in his home country appears to relate to different types of visa.

20. On the evidence provided and observing the reasoning in Kim, I am not satisfied that the applicant has established exceptional reasons for the grant of a Subclass 570 visa and therefore does not satisfy cl.570.227. Accordingly the Tribunal will affirm the decision under review.

    DECISION

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

    George Haddad

    
    

    Senior Member

    570.227

    If:

    (a)      the application was made in Australia; and

    (b)      subject to clause 570.227A, 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 570.211:

    (i)      as the holder of a visa of one of the following classes:

    (A)      Border (Temporary) (Class TA);

    (B)      Business (Temporary) (Class TB);

    (C)      Cultural/Social (Temporary) (Class TE);

    (D)      Educational (Temporary) (Class TH);

    (E)      Electronic Travel Authority (Class UD);

    (F)      Expatriate (Temporary) (Class TJ);

    (G)      Family Relationship (Temporary) (Class TL);

    (H)      Interdependency (Temporary) (Class TM);

    (I)      Long Stay (Visitor) (Class TN);

    (IA)      Maritime Crew (Temporary) (Class ZM);

    (J)      Medical Practitioner (Temporary) (Class UE);

    (K)      Retirement (Temporary) (Class TQ);

    (L)      Short Stay (Visitor) (Class TR);

    (LA)      Superyacht Crew (Temporary) (Class UW);

    (M)      Supported Dependant (Temporary) (Class TW);

    (N)      Temporary Business Entry (Class UC);

    (NA)      Tourist (Class TR);

    (NB)      Visitor (Class TV);

    (O)      Working Holiday (Temporary) (Class TZ); 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)      Subclass 427 (Domestic Worker (Temporary) — Executive); 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 570 visa.

    570.227A

    For paragraph 570.227(b), the highest assessment level does not include assessment level 1.