1505443 (Migration)

[2016] AATA 3163

1505443 (Migration) [2016] AATA 3163 (3 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ip Weng LEI

CASE NUMBER:  1505443

DIBP REFERENCE(S):  BCC2015/568269

MEMBER:Shahyar Roushan

DATE:3 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·Public Interest Criterion 4014 for the purposes of cl.573.224(a) of Schedule 2 to the Regulations.

Statement made on 03 February 2016 at 2:54pm

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 9 April 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 April 2015. At that time, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. In the present case, the delegate refused to grant the visa on the basis that the applicant did not satisfy Public Interest Criterion (PIC) 4014, and so did not satisfy cl.573.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant appeared before the Tribunal on 11 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. As the applicant currently has an offer of enrolment in a Bachelor of Business degree as their principal course, the relevant subclass in this case is Subclass 573 Higher Education Sector visa. The issue in the present case is whether the applicant meets cl.573.224(a), which specifies that at the time of decision the applicant must satisfy specified public interest criteria as set out in Schedule 4 to the Regulations, including 4014.

   Relevant law

8. Broadly speaking, PIC 4014 (attached to this decision) defines particular circumstances where a visa applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as an unlawful non-citizen or the holder of a Bridging C, D or E visa, except where limited specified circumstances are met: PIC 4014(4) and (5). 

9. Where an applicant is affected by a ‘risk factor’ as set out in PIC 4014, he or she is required to satisfy one of two alternate criteria set out in PIC 4014(1) to meet the PIC 4014 as a whole. PIC 4014(1)(a) requires that the visa application has been made more than 3 years after the date of the relevant departure from Australia.

10. Alternatively, PIC 4014(1)(b) requires that the decision maker be satisfied that in the particular case, compelling circumstances affecting the interests of Australia; or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within  3 years after the date of the relevant departure.

    Is the applicant affected by a risk factor for the purposes of PIC 4014?

11. According to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant is support of his application for review, the applicant was granted a student visa on 10 August 2012, which was valid until 24 March 2014. However, the applicant remained in Australia unlawfully until 28 August 2014, when he departed Australia. As the applicant had remained in Australia for more than 28 days after his substantive visa had ceased, an exclusion period of 3 years applied commencing from the date of his departure. The decision record noted that the applicant was granted a student visa from offshore on 15 September 2014 when the exclusion period for that particular application was waived.

12. The Tribunal finds on the basis of the above evidence that the applicant left Australia as an unlawful non-citizen. The Tribunal finds that none of the exceptions in PIC 4014(5) apply to the applicant. The Tribunal finds the applicant is therefore affected by the risk factor in PIC 4014(4). 

    Has the visa application been made more than 3 years after the applicant’s departure from Australia: PIC 4014(1)(a) ?

13. On 20 February 2015, the applicant applied for the visa which is the subject of this review. The Tribunal finds that the applicant departed Australia on 28 August 2014. Therefore, he applied for the visa which is the subject of this review less than 3 years after his departure. The Tribunal therefore finds that the applicant does not meet PIC 4014(1)(a).

    Are the waiver provisions in PIC 4014(1)(b) met?  

14. The Tribunal will now consider, whether, in this particular case, there are compelling circumstances affecting the interests of Australia; or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within 3 years after the date of the relevant departure.

15. The term 'compelling' is not defined in the legislation. The ordinary dictionary definitions of these words state that ‘compelling’ means ‘to force or drive, especially to a course of action’ or to ‘bring about moral necessity’. ‘Compassionate’ means ‘circumstances that invoke sympathy or pity’.

16. On 24 February 2015, the applicant was requested by the Department to provide comments as to why the exclusion period should be waived. The applicant responded by stating that he only became aware that he was in Australia unlawfully when he was in the process of departing Australia on 28 August 2014. At that time he felt very confused. He stated that he had never been absent from or failed in any of the courses of study he had undertaken in Australia and that he did not wish to disappoint his parents.

17. In a submission to the Tribunal, dated 10 December 2015, the applicant’s representative submitted that the applicant misunderstood the time given for him to study in Australia and he had no intention of staying in Australia unlawfully. He only found out his visa had expired at the airport when he was departing Australia on 28 August 2015. It was submitted that the applicant is remorseful and that he understands the seriousness of his failure to renew his visa.

18. It was submitted that during his stay in Australia the applicant had maintained enrolment in a Diploma of Information Technology and continued to attend every class. It was submitted that the applicant is a dedicated and genuine student and that despite the fact that he had misunderstood the expiry date of his previous student visa, as soon as he had lodged a further application for a student visa offshore in September 2014 he immediately contacted the University of Technology Sydney (UTS) as he was worried that he would be unable to attend classes. It was submitted that the applicant subsequently completed his Diploma of Information Technology at UTS on 28 May 2015. He then received an offer of enrolment in a Bachelor of Science (Informational Technology) degree at UTS.

19. The submission referred to the Department’s policy guidelines (PAM)[1] relating to ‘discretion to grant a visa during an exclusion period’ and more specifically in relation to former student visa holders. It was submitted that under departmental policy guidelines there may be compelling circumstances affecting the interests of Australia.

    [1] Procedures Advice Manual – Migration Act – Compliance and Case resolution – Cancellation – PAM – Exclusion Periods – Items 26-30.

20. In support of her submission, the applicant’s representative submitted copies of the applicant’s academic transcripts, copies of qualifications obtained in Australia and copies of correspondence between the applicant and UTS.

21. The Tribunal has had regard to Departmental policy pertaining to the discretion to grant a visa during the ‘exclusion period.’  Item 29.3 of the PAM guidelines states:

    29.3      Former Student visa holders

    There may be compelling circumstances affecting the interests of Australia in the case of persons whose last substantive visa was a Student visa and who are applying for a new Student visa. Where the applicant's circumstances, including previous study history in Australia, clearly demonstrate that they have been a genuine student in Australia, and there is no evidence that they have actively or intentionally abused or sought to circumvent immigration laws, decision makers may accept that compelling and compassionate circumstances exist. If the student wishes to apply for another Student visa, significant weight may also be given where there is evidence of a clear continuing study intention.

22. While the Tribunal is not bound by the policy, and recognises that the examples offered in the policy are neither determinative nor exhaustive of the circumstances in which the discretion may be exercised, the Tribunal has given weight to the policy, which appears to be directly relevant in the circumstances of this case.

23. On the basis of the evidence before it, the Tribunal is satisfied that the applicant initially entered Australia with the intention to study. Following his arrival in Australia in August 2012, he completed a number of Academic English courses. He subsequently enrolled in a Diploma of Information Technology. He was enrolled in and continued to study towards the Diploma until August 2014, when he discovered that his student visa had expired. Upon being granted a further Student visa offshore, he returned to Australia and subsequently completed his Diploma. He now intends to undertake a Bachelor of Business at Wentworth Institute.

24. The applicant’s last substantive visa was a student visa and he is applying for a new student visa. The evidence before the Tribunal clearly indicates that the applicant has been a genuine student in Australia. There is no evidence before the Tribunal that the applicant has actively or intentionally abused or sought to circumvent immigration laws.

25. Having considered all the relevant circumstances in this case, including the Department’s policy, the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa within 3 years after the departure of the applicant. Therefore, the Tribunal finds the applicant meets PIC 4014(1)(b) and in turn, satisfies PIC 4014 as a whole.

26. For the reasons given above, the Tribunal is satisfied that the applicant meets Public Interest Criterion 4014 for the purposes of cl.573.224(a) of Schedule 2 to the Regulations. The matter will now be remitted to the Minister for reconsideration.

    DECISION

27. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·Public Interest Criterion 4014 for the purposes of cl.573.224(a) of Schedule 2 to the Regulations.

    Shahyar Roushan
    Senior Member

    
    

    573.224

    The applicant:

    (a)      satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020; and
    (b)      if the applicant seeks to stay in Australia for 12 months or more, satisfies public interest criterion 4010; and
    (ba)      if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019; and
    (c)      if the applicant is applying outside Australia and the applicant has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.

    Public Interest Criterion 4014

    (1)      If the applicant is affected by the risk factor specified in subclause (4):

    (a)      the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or
    (b)      the Minister is satisfied that, in the particular case:

    (i)      compelling circumstances that affect the interests of Australia; or
    (ii)      compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
    justify the granting of the visa within 3 years after the departure.

    (4)      Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:

    (a)      an unlawful non-citizen; or
    (b)      the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.

    (5)      Subclause (4) does not to apply to a person if:

    (a)      the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or
    (b)      a bridging visa held by the person at the time of departure was granted:

    (i)      within 28 days after a substantive visa held by the person ceased to be in effect; or
    (ii)      while the person held another bridging visa granted:

    (A)      while the person held a substantive visa; or
    (B)      within 28 days after a substantive visa held by the person ceased to be in effect.