1504363 (Migration) - [2015] AATA 3432

1504363 (Migration) [2015] AATA 3432 (14 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Rommel Insigne
Mrs Marjorie Insigne
Mr Amiel Joseph Insigne
Mr John James Insigne
CASE NUMBER:  1504363
DIBP REFERENCE(S):  CLF2015/9632
MEMBER:Gabrielle Cullen
DATE:14 September 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:
·cl.573.227 of Schedule 2 to the Regulations.
Statement made on 14 September 2015 at 2:35pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied to the Department of Immigration for the visas on 17 February 2015.
The delegate refused to grant the visas on 25 March 2015 because the first named applicant did not satisfy the requirements of cl.573.227 of Schedule 2 to the Regulations on the basis he had not established exceptional reasons for the grant of the student visa as at the time of application he was the holder of a Subclass 600 tourist visa and based on his country of nationality and his course of proposed study he is subject to assessment level 2.
As part of the decision the Department noted that it requested the first named applicant provide exceptional reasons for the grant of the visa. On 19 February 2015 he submitted documents from the Four Square Church in which it was stated they supported the grant of the visa. The letter from the Rev Nomer Velasco of the Four Squares Church indicates that granting the student visas to the applicants would be of benefit to Australia in general and the Filipino community in particular. He notes that through his Master’s thesis the first named applicant is going to complete, Australian counsellors will gain added insight into the Filipino family culture that is invaluable in marriage counselling. He added if the visas are granted the applicant and his wife will be able to continue to conduct ongoing family life seminars with the Church and expand the foreign student education market to religious educational institutions.
On 30 March 2015 the applicants applied to the Tribunal for review of the delegate’s decision.
Prior to the hearing the first named applicant provided documents indicating he is successfully completing subjects in a Master of Theology, the course he is enrolled in. He resubmitted the letter from Four Square Church dated 19 February 2015 and outlined his current employment with the church as Church Pastor of the Visayan Outreach in Sutherland. Also attached was the missionary profile of the first named applicant and his family and resumes of the first and second named applicants. Information was provided indicating the Four Square Church made an application for the first named applicant…

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: [2015] AATA 3432
Decision Date: 14 September 2015

CaseChat Overview and Summary

The case of 1504363 (Migration) involves an applicant from the Philippines seeking a student visa in Australia. The matter was heard and decided by the Tribunal, which is tasked with reviewing decisions made by the Minister for Immigration and Border Protection regarding visa applications. The central issue in this case is whether the first named applicant meets the requirements under cl.573.227 of Schedule 2 to the Regulations for the grant of a student visa.

The Tribunal had to determine whether the first named applicant provided sufficient evidence to demonstrate that exceptional reasons exist for the grant of a student visa. This involves examining the applicant's claims about the benefits of his studies in Australia, as well as whether these reasons meet the standard of "exceptional" as described in relevant policy and case law. The Tribunal considered the applicant's role as a Pastor and his contributions to the Four Square Church in Australia, assessing both his credibility and the potential benefits to Australia.

After reviewing the evidence and considering the applicable legal standards, the Tribunal concluded that the applicant's reasons for seeking the visa were indeed exceptional. The Tribunal found that the applicant's study in Australia would enhance his ability to serve the Four Square Church community, thereby providing a benefit to Australia. Consequently, the Tribunal determined that the applicant satisfied the requirements of cl.573.227 and remitted the application back to the Minister for reconsideration of the remaining visa criteria.

The final decision of the Tribunal was to remit the applications for Student (Temporary) (Class TU) visas for reconsideration. The Tribunal directed that the first named applicant meets the criteria under cl.573.227 of Schedule 2 to the Regulations and instructed the Minister to consider the remaining criteria for the visas. This decision was made by Gabrielle Cullen, a member of the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 The issue in the present case is whether, at the time of this decision, the first named applicant satisfies cl.573.227 of Schedule 2 to the Regulations for the grant of a student visa. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration. As the information above indicates the first named applicant is a citizen of the Philippines who held a subclass 600 visa, granted on 28 March 2014 and valid to 25 March 2015, at the time he with his family applied for the student visas on 17 February 2015. Based on his course of study, a Master of Theology and country of passport the applicable assessment level is level 2 and as a result the first named applicant must satisfy cl.573.227 of Schedule 2 of the Regulations. The Tribunal has considered the first named applicant’s claims and evidence about why he wishes to study in Australia. It found both he and his wife to be honest and credible witnesses and accepts their evidence. It accepts the first named applicant is a genuine student and is attending and passing his course. It accepts he is providing help though prayer and counselling to Filipino families in Australia as part of the Four Square Church. It accepts he is employed as a Pastor and that he is in Australia filling a void to the members of this Church in the Sutherland Shire. It accepts his study in Australia will enhance his ability to service members of the Four Square church community. The Tribunal notes that the examples of what may constitute ‘exceptional reasons’ in departmental policy refer to instances where there is either a benefit to Australia. However, it also notes that these are merely examples and there is no prescriptive definition of the term beyond what may be described as ‘exceptional’ in ordinary parlance.[1] [1] Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008) at [30] undisturbed on appeal - Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009). See also Ali v MIBP [2014] FCCA 1630 (Judge Jarrett, 22 July 2014) at [8] - [9]. The Tribunal regards the matters raised by the first named applicant and his wife constitutes a benefit to Australia. The Tribunal therefore finds that the evidence presented represents exceptional reasons for the grant of a subclass 573 visa and therefore finds that the first named applicant satisfies the requirements of cl.573.227. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.DECISION The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:·cl.573.227 of Schedule 2 to the Regulations.Gabrielle CullenMember

Decision

Reasons for decision

Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.DECISION The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:·cl.573.227 of Schedule 2 to the Regulations.Gabrielle CullenMember

Ratio Decidendi

Legal Principle Established

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