1503473 (Migration)

[2015] AATA 3274

1503473 (Migration) [2015] AATA 3274 (4 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurdeep Singh

CASE NUMBER:  1503473

DIBP REFERENCE(S):  BCC2015/540421

MEMBER:Adrian Ho

DATE:4 August 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 04 August 2015 at 3:31pm

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 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 February 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.572.227 because the applicant did not establish exceptional reasons for the grant of the visa.

3. The applicant appeared before the Tribunal on 4 August 2015 to give evidence and present arguments, as was assisted by an accredited Punjabi interpreter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. An application for a student visa made in Australia where the applicant is seeking the grant of an initial student visa has a further time-of-decision requirement for certain classes of applicants – the applicant establishes exceptional reasons for the grant of the Subclass of visa specified for the course of study proposed to be undertaken by the applicant. The additional requirement in the present case is to be found in cl.572.227:

   If:

   (a)  the application was made in Australia; 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)  as the holder of a visa of one of the following classes or subclasses :

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

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

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

   (E)  Electronic Travel Authority (Class UD);

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

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

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

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

   (N)  Temporary Business Entry (Class UC);

   (NA)  Subclass 400 (Temporary Work (Short Stay Activity));

   (NB)  Tourist (Class TR);

   (NC)  Visitor (Class TV);

   (O)  Working Holiday (Temporary) (Class TZ);

   (P)  Temporary Work (Long Stay Activity) (Class GB);

   (Q)  Training and Research (Class GC);

   (QA)  Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;

   (R)  Temporary Work (Entertainment) (Class GE);

   (S)  Special Program (Temporary) (Class TE);

   (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)  Subclass 427 (Domestic Worker (Temporary)--Executive);

   (BA)  Subclass 485 (Temporary Graduate);

   (C)  Subclass 497 (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.

6. For paragraph 572.227(b), the highest assessment level does not include assessment level 1: cl.572.227A. 

7. The applicant’s written material and oral evidence indicates that the application was made in Australia while the applicant was the holder of a Subclass 600 visitor visa. 

8. The tribunal finds that cl.572.211 was met at the time of application on this basis.

9. On the basis of the information relating to the Subclass of visa the applicant is seeking, as the holder of a passport of India and the Gazette Notice which determines the assessment level to which the applicant is subject, the Tribunal finds that the assessment level is greater than 1, and applicant is required to satisfy cl.572.227 and to establish exceptional reasons for the grant of a Subclass 572 visa.

10. 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[1]. 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).

    [1] Kim v Minister for Immigration and Anor [2008] FMCA 1577

11. 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…

12. After an extensive examination of the legislative scheme and instruments which underlie the requirement of clause 573.227 (in similar terms as cl.572.227) 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 hearing

13. At hearing, the requirements of cl.572.227 were explained to the applicant.

14. It was suggested that the applicant’s assessment level was not 1, and therefore, the applicant had to demonstrate exceptional reasons for the grant of a student visa onshore, and that all subclasses of visa within Class TU contained an equivalent criterion, and that if the tribunal was not satisfied that exceptional reasons existed for the subclass relevant to the course of study proposed, the tribunal would likely not be so satisfied for each of the remaining subclasses.

15. At hearing, the applicant was invited to speak of any matter which was felt to demonstrate exceptional reasons as to why the visa should be granted where it appeared that the Regulations otherwise imposed a general ban on the granting of a student visa to holders of specified visas who are not at Assessment Level 1 while they remain onshore.

16. The applicant was informed that in apply the case of Kim, the tribunal would take the approach that if the applicant was caught by the criterion the visa should not be granted unless exceptional reasons can be positively identified which the tribunal considers justify the granting of the visa.

17. The applicant made the following points:

    a.He had come to visit his brother twice on Subclass 600 visas and his latest entry on a visitor visa was in January 2015;

    b.His passport country is India (he holds no other passport) and the course he wishes to study is in the Vocational Education sector and the visa he seeks is the Subclass 572 visa;

    c.He applied for the visa in February 2015 and held a Subclass 600 at the time;

    d.He has never held a student visa;

    e.He has not commenced the Certificate III course he wishes to study as he believed that he might not be permitted to study while not holding a student visa;

    f.He had completed automotive studies in India and a friend in Australia was also studying an automotive course;

    g.He talked with his friend and discovered that courses in Australia covered topics which were not covered by courses in India;

    h.He has worked in a semi-government organisation in the automotive field in India and if he completed a course here, he could step up to a multinational company;

    i.He wished to return to India after completing the course;

    j.The migrant agents in India are not trustworthy and it is better to apply in Australia using a registered migration agent;

    k.He has now lost his job in India;

    l.He has spent all of his money;

    m.He was not aware of the requirement of cl.572.227 and would have applied offshore if he was aware.

18. Doubt was expressed to the applicant as to whether any of the factors mentioned, or all of them together, would constitute exception reasons for granting the visa.

19. The applicant was asked numerous times if there were any other factors he wished the tribunal to consider.

20. The applicant made these points:

    a.His agent, Mr Rahul Singh, has misguided him and told him that he had a 100% chance of being granted the student visa he applied for and did not inform him of any requirement to identify exceptional reasons;

    b.In 2009 he applied for a student visa offshore and was also ‘cheated’ by his agent, who applied on his behalf for a business management course, instead of in the automotive field as he intended, and for this reason the answers he gave to the Department over the phone were not consistent with the material in his application; and

    c.His brother is here onshore, and that is why he applied onshore.

21. It was put to the applicant that money he had spent engaging a migration agent and paying for the tribunal’s review application were as a result of personal decisions he had made, and may not constitute exception reasons for granting the visa.  Similarly, his decision not to return to India to make an offshore application and at the same time resume his employment so as to retain that employment in the meantime, were personal decisions he had made which may not constitute exceptional reasons.

22. The applicant stated that it was not his fault that he was unaware of the criterion in issue and his trusted his agent, Mr Rahul Singh.  He said he applied here because he was already here and did not see any reason for returning to India to make the application.  It was conceded to him that it was more convenient to make the application onshore since he was already onshore; however, that would not appear to constitute exceptional reasons.

23. Being invited a final time to identify relevant factors, the applicant repeated points made previously and already noted above.

    Findings

24. The tribunal finds that, holding an Indian passport and intending to study a vocational certificate course, the specified applicable subclass on the relevant instrument is Subclass 572 and the specified assessment level, and the highest assessment level, is 3.

25. The tribunal accepts the applicant’s evidence that he held a Subclass 600 visa at the time of application and that he has never held a student visa.

26. The tribunal finds that to meet cl.572.227, the applicant must establish exceptional reasons for the grant of the visa.

27. The reasons variously proffered by the applicant involve the poor advice he received from his migration agent, Mr Rahul Singh, his ignorance of the criterion in issue, the value of the course to his future career, the convenience of applying onshore since he was already onshore, his distrust of agents in India, and his personal difficulties (loss of his job and exhausting of his funds) in having remained in Australia, having applied onshore, having engaged a migration agent, and having applied for review.

28. As suggested to the applicant, the tribunal does not consider being ignorant of the visa criteria, or having received poor or inaccurate advice, to constitute exceptional reasons for granting the visa.

29. The tribunal does not consider that matters of convenience (in making the application in Australia and not travelling offshore to make the application) constitute exceptional reasons for granting the visa.

30. As suggested to the applicant, it appears to have been his decision not to pursue his employment in India.  The Certificate of Enrolment he submitted showed that his course would end in June 2016 and he conceded at hearing that his aim was to study so as to obtain a better job in India.  That is, on his own plan, he did not plan to return to his existing job or employer.  As suggested to him, if, however, he wished to retain his job in the meantime, he could have decided to return to India after his visit to Australia, to continue working, and to apply for a student visa offshore.  He chose not to.

31. Similarly, expending funds (indeed, exhausting one’s funds) hiring a migration agent and pursuing tribunal review, or to live in Australia, are not exception reasons to grant the visa.  Those funds were exhausted as a result of personal decisions made by the applicant, whether made poorly or made well.

32. The tribunal accepts that the applicant may have considered an Australian registered migration agent to be more trustworthy than an agent in India.  If that is so, he could have engaged an Australian-registered agent to prepare an application that he could then lodge offshore.  The tribunal does not consider that these reasons constitute exceptional reasons for granting the visa.

33. Finally, the tribunal does not consider that any combination of the reasons proffered, or all of them taken together cumulatively, constitute exceptional reasons for granting the visa.

34. The tribunal has considered the written reasons given to the Department (for example, at f.17 Department file).  Those reasons to not appreciably add to the reasons offered at hearing, and do not constitute exceptional reasons for granting the visa.

35. The tribunal finds that there are no exceptional reasons for granting the visa, and the applicant does not meet cl.572.227.

36. Each of the other subclasses within Class TU contains an equivalent criterion to cl.572.227, requiring that the applicant establish exceptional reasons for the grant of the visa.  For the reasons above the applicant fails against each of those criteria and subclasses.

37. The tribunal affirms the decision under review.

    DECISION

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

    Adrian Ho
    Member