1504363 (Migration)
[2015] AATA 3432
•14 September 2015
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 InsigneCASE 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 on 22 July 2015.
The first and second named applicants appeared before the Tribunal on 14 September 2015 and gave evidence. When it was explained that the first named applicant is required to show exceptional reasons for the grant of the visa to meet cl. 573.227, he explained that he and his wife are trained and educated in marriage and family counselling and particularly understand it in a Filipino context. He said they have been helping Filipino families in this manner in Australia, particularly in the Sutherland Shire and assisting in preaching to these families as a Pastor. He said they are needed as there are dysfunctional Filipino families in Australia, particularly those where Filipino women have married Australian men and help and counselling is needed. He said there was no such outreach for the Four Square Church to family’s in the Sutherland Shire until they came. Both he and his wife indicated that they are seen as leaders in the field because of their past training in the Philippines. Both their resumes indicate this. They both talked of the need for their programs in the Sutherland Shire and explained in detail how they are assisting the Four Square Church and its members.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration
RELEVANT LAW
The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.227. Clause 573.227 relevantly states:
If:
(a) the application was made ; and
(b) subject to clause 573.227A, 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 573.211:(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 573 visa.
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.
The term ‘exceptional reasons’ is not defined in the Act or Regulations.
An applicant subject to cl.573.227 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).
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).
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 Cullen
Member
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