1507078 (Migration)
[2016] AATA 3443
•26 February 2016
1507078 (Migration) [2016] AATA 3443 (26 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Miss Swastika Shristi Mani
CASE NUMBER: 1507078
DIBP REFERENCE(S): CLF2015/15234
MEMBER:R. C. Titterton
DATE:26 February 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.
Statement made on 26 February 2016 at 4:29pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 May 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).
The visa applicant applied for the visa on 13 March 2015. At the time of lodging her application, the applicant was the holder of a FA-600 Visitor visa. Based on the country of issue of her passport in the course of study she proposed to undertake, the assessment level applicable to her application was Assessment Level 3. As an Assessment Level 3 visa applicant, when applying for a student visa in Australia, the applicant had to be either the holder of a student visa or establish exceptional reasons for the grant of a student visa. On 5 May 2015 delegate did not accept that the matters relied on by the applicant established exceptional reasons for the grant of the visa, and therefore that the applicant did not meet reg 572.227.
The applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s cousin Ms Sana Ali.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether or not the applicant can establish exceptional reasons for the grant of the visa.
The Tribunal had before it the following relevant documents.
First, a letter from the applicant to the Department dated 7 April 2015. This letter was before the delegate and provided her explanation of why there were exceptional circumstances for the grant of a student visa. The primary ground advanced by her as establishing exceptional reasons is the following:
“I would like to be of support for my ailing father; Vijay Prakash. At the moment, I father is a farmer living in Fiji. He had been looking after me following my mother’s demise. My father had been both a father and mother to me throughout these years. Hence, I would like to be able to financially, emotionally, and physically support my father. It would be possible upon successful completion of the course at Australian Ideal College. The increased value from an internationally renowned Australian educational institution would enhance my career as a coordinator, team leader, supervisor, leading hand, project manager or office manager in Fiji. On the other hand, if I were compelled to return to Fiji to apply for a student visa, I would be highly likely to come under significant pressure to remain there and work in order to support my family and pay medical costs for my ailing father. Subsequently, it would result in the loss of investment so far my cousin sister; Sana Ali (Shivanjini Narayan) around $22,500. In addition it would inevitably cause emotional, financial, and physical hardship on me as I would have to take on heavy responsibilities whilst being underpaid without a higher educational diploma.
Secondly, a statutory declaration of the applicant dated 11 August 2015. This statutory declaration was not before the delegate. In this statutory declaration the applicant explains how she had been misled by her migration agent. The gist of this evidence was that the agent advised her that she would be able to apply in Australia for the student visa, which advice is not correct (save for satisfying exceptional circumstances).
Thirdly, a statutory declaration of the applicant’s cousin Ms Sana Ali, also dated 11 August 2015. This statutory declaration was not before the delegate. In this detailed statutory declaration, Ms Ali, and in evidence to the Tribunal, confirmed the applicant’s dealings with the agent. Ms Ali impressed the Tribunal as an honest and reliable witness, as she gave some evidence which was not in fact in her cousins interests, namely that the applicant could have gone home to apply offshore, or would have considered doing so if she had been given the right advice at the right time.
Fourthly, a bundle of materials received from the applicant’s agent after the hearing. These materials included:
·submissions;
·a document titled “statement of purpose – outlining the reasons for undertaking my intended course at TAFE NSW”, prepared by the applicant dated 15 June 2015; a letter from Granville College dated 25 November 2015 confirming that the applicant was a student there and that her attendance had been satisfactory;
·a copy of the applicant’s mother’s death certificate;
·a copy of the applicant’s birth certificate;
·a copy of a letter from TAFE dated 27 November 2015 indicating that the applicants results were being processed and would be finalised in the next two weeks.
In the submissions, the agent draws the following relevant matters to the Tribunal’s attention:
·if the applicant were to return back to Fiji without completing her course, she would feel obliged to say with her father and brother without returning to Australia to complete a course at a later date. “Ultimately it would deprive the applicant of completing her personal ambition, halting her ability to feel her Pinnacle career goal”.
·the course the applicant wishes to complete is only available in Australia;
·the applicant has the sole intention of coming to Australia to complete the course, and once completed, is a goal to take a knowledge and understanding of forensic science back home to Fiji.
·the applicant has taken great effort to integrate into their strain community. Her appreciation for the culture of Australia and its multiculturalism has allowed her to take pride in her studies in education, hoping to use a greater education to better her home country.
At the hearing
At the hearing the applicant’s agent submitted that exceptional reasons were established by the following factors:
·that she has successfully integrated into the Australian community;
·that she can provide exceptional economic, educational and cultural benefits to Australia
·that she enjoys the financial support of her cousin.
The Tribunal was referred to the decision of Octavia v Minister for Immigration [2011] FMCA 16. This was cited for authority for the proposition that the provision of exceptional economic, cultural and educational benefits to Australia would be a matter satisfying exceptional circumstances. Unfortunately, that case is not authority for that proposition, and indeed it is concerned with the assessment of an applicant’s skills for the purposes of the grant of a VB Skilled (Residence) visa. The decision is not concerned with “exceptional reasons” for the grant of a student visa.
The Tribunal asked the agent to explain what exceptional economic benefits the applicant could provide to Australia. The agent explained this would be the economic benefit to Australia once the applicant finished her course and was working in Australia. She said that this would provide economic stimulation.
The agent also submitted that the course which the applicant wished to enrol, Forensic Science - Laboratory Technology, was not available in Fiji.
At the time of the hearing, the Tribunal heard that applicant was enrolled in her course, which she enjoyed very much. At the time of the hearing she had completed her first of four semesters. She was still awaiting results. She confirmed that her father was still living in Fiji along with her brother. Her mother died in 2003. The applicant would have been 7 ½ years old at the time. The Tribunal asked her about the comment in her statement, were she to return to Fiji, she would feel obliged to remain and look after her father. The Tribunal asked if this was correct. There was a quite a pause before the applicant answered, “yeah”, and then “mm, yeah”, “‘cause I was waiting for my results”. The Tribunal asked the applicant to explain this comment, but no persuasive or coherent explanation was provided.
The Tribunal also discussed with Ms Ali whether in fact the applicant would feel pressured to remain in Fiji if she had to return. Ms Ali answered quite honestly and properly indicated that she could say that this was the case, but as the applicant was very close to her father, no doubt she would feel some obligation and indeed want to remain with him, at the expense of her studies. On the other hand, she also felt and under an obligation to provide for her husband her father, which she thought she could best to support undertaking this particular course in Australia, which course is not otherwise available in Fiji.
Relevant legal principles
Ultimately, what the Tribunal has to determine these whether or not the applicant establishes exceptional reasons for the grant of a 572 visa. This is a question of fact, but some assistance is provided by the authorities.
I summarise these as follows:
· exceptional reasons in this context are not intended to be found by deciding whether the visa applicant has the “normal” characteristics of an application was not subject to the restriction on the criterion, nor by deciding whether he or she departs from the “normal” characteristics of the group who are 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 fight 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 was no prescriptive definition of the term;
· similar to the phrase “exceptional circumstances” in the context of visa cancellation, the emphasis of “exceptional reasons” is on the term “exceptional”, and the term is one which may have a wide operation and no definition which limits its application should be adopted unless the limitation appears from the words of the relevant statutory provision;
· the decision-maker has “a nearly unconfined discretion to address particular circumstances of the case, and 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.
Under Departmental guidelines (PAM 3) 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 will 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 to continue their course of study”;
· the applicant previously held a student visa and now holds subclass 600 Toursit or subclass 676 Tourist visa granted under Ministerial Intervention.
These guidelines are not binding upon the Tribunal but may be a relevant consideration when determining what constitutes exceptional circumstances in the applicant’s circumstances.
Consideration
The Tribunal is not persuaded that exceptional reasons exist for the grant of the applicants visa. It was not submitted, for instance, that she faced prospects of harm in Fiji if she had to return, or that returning home and applying offshore would pose some insurmountable financial problem for her. It was submitted that she was concerned that she may not be able to enrol for some reason, although no particular reason was identified. The Tribunal was not convinced, in the absence of any persuasive evidence from the applicant herself, that she would feel forced to remain in Fiji and to forgo her studies if she returned. Nor does the Tribunal does not accept that any of the matters advanced by the applicant fall within the Departmental Guidelines (PAM 3) for exceptional circumstances.
The decision of the delegate must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.
R. C. Titterton
Member
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