1507400 (Migration)

[2015] AATA 3712

1507400 (Migration) [2015] AATA 3712 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SHARIFAN BIBI

CASE NUMBER:  1507400

DIBP REFERENCE(S):  BCC2015/1380187

MEMBER:Don Lucas

DATE:19 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 November 2015 at 12:30pm

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 14 May 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 570 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 12 May 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and the subclass for which the type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 570.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Migration Regulations 1994). The relevant subclass in this case is Subclass 570.

3. The criteria for the grant of a Subclass 570 visa are set out in Part 570 of Schedule 2 the Regulations. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.570.227. The delegate found that the applicant held a Subclass 600 (Visitor) visa at the time when she applied for the student visa and under those circumstances she had to establish exceptional reasons for the grant of the visa. The delegate was not satisfied that in the applicant’s case exceptional reasons existed.

4. The applicant appeared before the Tribunal on 16 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Taimur Anwar, who is her son-in-law.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant has established exceptional reasons for the grant of the visa as required by cl.570.227.

7. In circumstances when the applicant is the holder of a visitor visa at the time of application, as in the present case, they have to establish in most cases exceptional reasons for the grant of the visa: cl.570.227. With the exception of Subclass 580 (Student Guardian) visa, this requirement applies to all applicants who use a passport relevantly prescribed for Assessment Levels 2,3,4,5 under r.1.41: cl.570.227A. In this case the applicant, who has a passport issued by Pakistan, is at Assessment Level 3 in respect of Subclass 570 which is the visa applicant is seeking to obtain, and must establish exceptional reasons for the grant of the visa.

8. The term ‘exceptional reasons’ is not defined in the legislation. The Department provides guidance to its officers through the Procedures Advice Manual. These guidelines are not binding on the tribunal but regard may be had to them where they are not in conflict with the legislation. The current Procedures Advice Manual (PAM) relating to exceptional reasons is attached to this decision. However, after discussing the issue with the applicant at the hearing, the Tribunal has formed the view that the PAM guidelines do not apply in the present matter.

9. The Tribunal has had regard to the judgment of Smith FM in Kim v Minister for Immigration and Anor [2008] FMCA 1577 where Smith FM stated that the word 'exceptional' has dictionary meanings: “of the nature of or forming an exception; out of the ordinary course, unusual, special”.

10. The Tribunal has considered the applicant’s description of her circumstances. In summary, the evidence from the applicant in writing and at hearing, together with the evidence at hearing from her son-in-law indicates that:

    ·the applicant is retired schoolteacher whose four children all reside in Australia; the applicant has travelled to Australia on several occasions in the last five years as the holder of visitor visas in order to spend time with her children and grandchildren in Australia;

    ·the applicant wishes to study English in Australia in order to facilitate communications necessary during travel and also during the time she spends in Australia visiting her family, as she lacks the independence that English language would bring due to her communication difficulties;

    ·in addition, the applicant has expressed difficulties in communicating with her grandchildren whose first language is English rather than Urdu, which is the applicant’s first language, and that by developing English language proficiencies she will have a closer relationship with her grandchildren.

11. The Tribunal entirely accepts that the applicant wishes to improve her English for the reasons she has expressed.

12. However, the Tribunal is not satisfied that the circumstances described by the applicant amount to circumstances which are out of the ordinary, unusual or special to the extent that exceptional reasons exist for the grant of the visa.  The Tribunal does not consider that any of the applicant’s reasons positively identify anything exceptional which justifies the grant of the visa to her.

13. Accordingly, after considering the applicant’s reasons individually and cumulatively, the Tribunal finds that none of the reasons put forward by the applicant are 'exceptional' in the ordinary meaning of the word or that they constitute exceptional reasons for the grant of a Subclass 570 visa. It therefore finds that the applicant does not satisfy cl. 570.227 of Schedule 2 of the Regulations because she did not establish exceptional reasons for the grant of the visa.

14. The Tribunal has found the applicant does not meet an essential requirement of cl.570.227. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

15. The Tribunal affirms the decisions not to grant the applicant a Student (Temporary) (Class TU) visa.

    Don Lucas
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    570.227

    If:

    (a)      the application was made in Australia; and
    (b)      subject to clause 570.227A, 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 570.211:

    (i)      as the holder of a visa of one of the following classes or subclasses:

    (A)      Border (Temporary) (Class TA);
    (B)      Business (Temporary) (Class TB);
    (C)      Cultural/Social (Temporary) (Class TE);
    (D)      Educational (Temporary) (Class TH);
    (E)      Electronic Travel Authority (Class UD);
    (F)      Expatriate (Temporary) (Class TJ);
    (G)      Family Relationship (Temporary) (Class TL);
    (H)      Interdependency (Temporary) (Class TM);
     (IA)      Maritime Crew (Temporary) (Class ZM);
    (J)      Medical Practitioner (Temporary) (Class UE);
    (K)      Retirement (Temporary) (Class TQ);
     (LA)      Superyacht Crew (Temporary) (Class UW);
    (M)      Supported Dependant (Temporary) (Class TW);
    (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); 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 570 visa.

    570.227A

    For paragraph 570.227(b), the highest assessment level does not include assessment level 1

    The current Procedures Advice Manual (PAM) provides the following guidance with regards to exceptional reasons:

    96.1      If changing status to student

    Clause 57x.227 precludes most AL 2, 3, 4 and 5 applicants in any student visa subclass from being granted an initial student visa onshore unless the applicant establishes exceptional reasons for the grant. (The criterion does not apply to:

    ·family unit members

    ·AusAID/Defence students (576) and

    ·the holder (as the partner or a dependent relative of a diplomatic or consular representative in Australia) of a Diplomatic (Temporary) (Class TF) visa.)

    This criterion applies also to students whose principal course may be AL 1 but who are affected by an AL change as a result of the student packaging their course with a prerequisite course with an AL of 2-5 - see section 40 Assessment levels and course packaging. Students affected by an AL change should be given an opportunity to establish exceptional reasons for grant of the visa.

    Exceptional reasons must exist

    Under policy, exceptional reasons may include, but are not limited to the following:

    Benefit to Australia

    Under policy, exceptional reasons require an applicant to establish that visa grant would improve bilateral relations or provide significant economic benefits to Australia. To determine whether a visa grant would provide improved bilateral relations, decision makers must consult their supervisor, and, if appropriate, that supervisor should contact the policy owner for advice prior to contacting DFAT.

    Students who have been granted a scholarship by the Australian Government, a state/territory government or the government of a foreign country may be considered as having exceptional reasons for the grant of an initial student visa onshore if circumstances have prevented them from applying for their initial student visa from outside Australia.

    For example, where required, the Kingdom of Saudi Arabia sponsors chaperones to accompany King Abdullah Scholarship Programme (KASP) students to Australia. In some circumstances these chaperones are awarded their own KASP scholarship when they arrive in Australia to undertake study while acting as chaperone. In these circumstances applicants should submit a letter of support from the Kingdom of Saudi Arabia with their application and decision makers may consider this as an exceptional reason for the grant of the visa onshore on the grounds of benefit to Australia.

    Dependent of departing temporary resident

    Officers may consider exceptional reasons to exist if the applicant:

    ·is a family member (for example, dependent child or partner) of a departing temporary residence visa holder and

    ·has been successfully studying in Australia for at least one year and

    ·wishes to complete their current course or undertake further studies.

    This can include applicants who currently hold a 497 or 485 visa but need to change back to a student visa, as they have not met the requirements for skilled migration.

    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 is a holder of an Occupational Trainee (442) visa, a Visiting Academic (419) visa or in the Occupational Trainee stream or the Research stream of the Training and Research (GC-402) visa and wishes to change to a student visa to undertake further study.

    Former student visa holder granted a Visitor visa under Migration Act s351

    If the applicant was a former student visa holder, under policy, exceptional reasons exist if they:

    ·have previously held a student visa; and

    ·hold either a 600 or a 676 visa granted under s351 (Ministerial intervention).

    Other reasons

    If officers are considering exceptional reasons that fall outside these guidelines, advice can be sought from the policy owner by email.

    96.2    If the applicant has been government-funded

    Schedule 2 requires onshore student applicants (all subclasses 570-576) who:

    ·hold or last held a student visa with condition 8535 and

    ·are or were given financial support from the Commonwealth or a foreign government for that student visa

    to provide written evidence that, in relation to their current visa application, the relevant government does not oppose the applicant undertaking the course. The onus is on the applicant to produce this evidence for visa grant. Officers should limit contacting foreign missions or other government departments for verification of documents to situations where doubt exists. The 8535 condition may also be attached to any new visa - see section 145 Condition 8535.

    .