1506745 (Migration)

[2015] AATA 3276

1506745 (Migration) [2015] AATA 3276 (12 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ngoc Tram PHAM

CASE NUMBER:  1506745

DIBP REFERENCE(S):  BCC2015/807970

MEMBER:Adrian Ho

DATE:12 August 2015

PLACE OF DECISION:  Melbourne

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:

•           cl.573.227 of Schedule 2 to the Regulations.

Statement made on 12 August 2015 at 3:01pm

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 28 April 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 11 March 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.573.227 because the applicant did not establish exceptional reasons for the grant of the visa.

3. The applicant appeared before the Tribunal on 29 July 2015 to give evidence and present arguments. 

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

   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.573.227:

   573.227 

   If:

   (a)  the application was made in Australia; 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);

   (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 573 visa.

6. For paragraph 573.227(b), the highest assessment level does not include assessment level 1: cl.573.227A. 

7. The applicant’s written material 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.573.211 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 Vietnam and the Gazette Notice which determines the assessment level to which the applicant is subject, the Tribunal finds that the assessment level is not 1, and applicant is required to satisfy cl.573.227 and to establish exceptional reasons for the grant of a Subclass 573 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 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.573.227 were explained to the applicant.

14. It was suggested that the applicant that the applicant’s assessment level was not 1, and the applicant had to demonstrate exceptional reasons for the grant of a student visa onshore.

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 made the following points:

    a.She first came to Australia in February 2013 and 573 visa to study a bachelor of business which she completed in December 2013, having completed some units in Vietnam;

    b.She then went on to a Visitor visa in order to graduate and left Australia in July 2014;

    c.Back in Vietnam, she applied for finance jobs and business administration jobs, but could not find a job;

    d.She was a little depressed because of this and wanted to visit friends in Australia and returned on a Visitor visa in December 2014;

    e.After returning to Australia she was advised by her parents that her business qualifications were very general and had  no ‘major’ and if she wanted to get jobs she needed more qualifications;

    f.Her father used to work in information technology and suggested that field, which also interested her;

    g.She enrolled in a bachelor of information technology and commenced study in February 2015;

    h.She had exceptions for nine subjects and had two years remaining at a cost of more than $32000;

    i.Her parents paid for her first semester of study, the results of which she gave to the tribunal;

    j.She used to study in Australia and used to hold student visa;

    k.Her new IT course was still related to her bachelor of business, which is why she has received exemptions for 9 units;

    l.She wants to go home in 2017;

    m.She was not aware of the “exceptional reasons” requirement when she applied;

    n.She provided a document which suggested that she did attempt to investigate if she could apply for the visa onshore, as she discovered that she was not subject to a ‘no further stay’ condition;

    o.She really wanted to keep studying;

    p.She didn’t have enough time to apply offshore as the course was starting in February 2015;

    q.If she went offshore she would have to wait until July to start the course;

    r.Her visitor visa was valid for 3 months with a single entry.

17. Little guidance is provided to a decision maker in exercising the broad discretion conferred by cl.573.227 and its equivalents for other subclasses.

18. Relevant Department policy (PAM3) provides:

    Former student visa holder or temporary visa holder

    If the applicant holds a “temporary residence” visa, under policy, exceptional reasons exist if they:

    •          have previously held a student visa and

    •          while still in Australia as the holder of the student visa, were granted a class of “temporary residence” visa listed in 57x.211(2) and

    •          now wish to change back from “temporary residence” status to a student visa to undertake further study.

    Exceptional reasons also exist if an applicant holds:

    •          a TH-442 Occupational Trainee visa

    •          a TH-419 Visiting Academic visa or

    •          a GC-402 Occupational Trainee stream visa or

    •          a GC-402 Research stream visa

    and wishes to change to a student visa to undertake further study.

    Former student visa holder granted a visitor visa under ministerial intervention

    If the applicant has previously held a student visa, under policy exceptional reasons exist if they:

    •          have previously held a student visa; and

    •          hold either an FA-600 or a TR-676 visa granted under s351 (ministerial intervention).

19. Had the applicant obtained her visitor visa while still in Australia, and then sought, as she has, to pursue further study, she would have been considered under policy to have had exceptional reasons for doing so.  This course of events was interrupted by her return to Vietnam of some months.  She is nonetheless, as described by the delegate and as stated in written policy, a ‘former Student visa holder’.  She is not seeking the grant of her first student visa.  The progression of her immigration history is, consistent with written policy, from student visa to visitor visa and now, on her application, back to student visa.  Her period of travel offshore might appear to severe her circumstances from those depicted in written policy.  The only distinction between the two sets of circumstances is that exception is made for a former student who remains onshore, which exception saves that person from making the offshore trip (a trip made by the applicant) necessary to lodge an offshore student visa application.

20. In these circumstances, the tribunal considers it appropriate in the exercise of the broad discretion allowed by the criterion to extend the benefit of written policy to the applicant and finds that she has exceptional reasons for the grant of the visa.

21. The applicant meets cl.573.227.

    DECISION

22. 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::

    •          cl.573.227 of Schedule 2 to the Regulations.

    Adrian Ho
    Member