1508032 (Migration)

[2016] AATA 4123

1508032 (Migration) [2016] AATA 4123 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilpreet Singh Ghotra

CASE NUMBER:  1508032

DIBP REFERENCE(S):  CLF2015/20225

MEMBER:Shahyar Roushan

DATE:18 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2016 at 3:35pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 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).

   Background and Evidence

2. The visa applicant applied for the visa on 2 April 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained eight subclasses: Item 1222 of Schedule 1 to the Regulations. For applicants who apply as a student, the subclass that can be granted in any particular case depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course as explained in r.1.40(2) and (3) of the Regulations, and its specification by the Minister by Gazette Notice made under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations) or, for Subclass 576, its approval by the AusAID Minister or the Defence Minister (see Part 576 of Schedule 2).

3. At the time of lodgement, the applicant was the holder of a Visitor (subclass 600) visa. Where the applicant is the holder of a Visitor visa when making an application for a Class TU visa in Australia he or she must, in most cases, establish exceptional reasons for the grant of the visa (see cl.570.227, cl.571.227, cl.572.227, cl.573.227, cl.574.227, cl.575.227 and cl.580.227 of the Regulations). For all but the Subclass 580 (Student Guardian) visa this requirement does not apply to applicants where they use a passport relevantly prescribed for Assessment Level 1 under r.1.41 (see cl.570.227A, cl.571.227A, cl.572.227A, cl.573.227A, cl.574.227A and cl.575.227A of the Regulations).

4. In this case, the applicant holds a passport of India. The delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Diploma of Management at the Australian Vocational Learning Centre. The assessment level for a holder of such a passport for Subclass 572 (and Subclass) 573 is assessment level 3: IMMI 14/014. 

5. The delegate decided to refuse to grant the visa on 28 May 2016 on the basis that the applicant did not establish exceptional reasons for the grant of the visa as required by cl.572.227 of Schedule 2 to the Migration Regulations 1994.

   Relevant Law

   Exceptional Reasons

6. It is a visa criterion for certain applicants for a Student (Temporary) (Class TU) visa who apply in Australia that they must establish ‘exceptional reasons’ for the grant of the visa.   Practically speaking, where this criterion applies, an applicant cannot enter Australia on another type of temporary visa (i.e. a temporary visa other than a student visa) and then obtain a Class TU visa on the basis of studying in Australia unless he or she establishes exceptional reasons for the grant of the visa.

7. The ‘exceptional reasons’ for grant criterion only applies where:

   ·the visa application was made in Australia

   ·the applicant is subject to assessment levels 2,  3, 4, or 5 , i.e. the applicant is not subject to streamlined visa processing arrangements  and

   ·at the time of application, the applicant was either:

   a.    the holder of a specified temporary visa; or

   b.    if the applicant did not hold a substantive visa, immediately before ceasing to hold a substantive visa, the applicant held a specified visa.

8. The specified temporary visa classes and subclasses for student visa applications include Subclass 600 (Visitor).

9. The term ‘exceptional reasons’ is not defined in the Act or Regulations.  The Immigration Department produces guidance on what may be considered exceptional reasons where these must be established. These guidelines are not binding upon the Tribunal but are a relevant consideration when determining what constitutes “exceptional reasons”. Current departmental guidelines provide the following instances where ‘exceptional reasons’ may be established:

   ·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 is applying for their first student visa 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).

   Streamlined Processing Arrangements

10. For applications made on or after 24 March 2012 applicants seeking to undertake study at university and who meet the definition of ‘eligible higher degree student’, ‘eligible university exchange student’ or ‘eligible non-award student’ are subject to streamlined processing arrangements, particularly in relation to the genuine student criterion. For applications made on or after 23 November 2014, applicants seeking to undertake an advanced diploma in a vocational education and training course who meet the definition of ‘eligible vocational education and training student’ are also subject to streamlined processing arrangements.

11. Applicants meeting the definition of ‘eligible VET student’ for a Subclass 572 visa, ‘eligible higher degree student’ for a Subclass 573 or 574 visa or ‘eligible university exchange student’ or ‘eligible non-award student’ for a Subclass 575 visa at the time of application, must have a CoE in each course of study for which they meet that definition.[1]

    [1] See cl.572.212, 573.212, 574.212 and 575.212

12. An ‘eligible vocational education and training student’ (eligible VET student) is an applicant for a Subclass 572 visa where:

    ·the applicant is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector;

    ·the principal course of study is provided by an eligible education provider; and

    ·if the applicant proposes to undertake another course before, and for the purposes of, the principal course, the applicant is also enrolled in that course, and that course is provided by the eligible education provider or an educational business partner.[2]

    [2] See cl.572.111, as amended by SLI 2014, No.163 for applications made on or after 23 November 2014.

13. An ‘eligible higher degree student’ is an applicant for a Subclass 573 or Subclass 574 visa where:

    ·the applicant is enrolled in a principal course of study for the award of a bachelor’s degree or a master’s degree by coursework, or for visa applications on or after 23 November 2014, an advanced diploma in the higher education sector (Subclass 573) or for the award of a master’s degree by research or a doctoral degree (Subclass 574); and

    ·the principal course of study is provided by an eligible education provider; and

    ·if the applicant proposes to undertake another course before, and for the purposes of, the principal course, the applicant is also enrolled in that course, and that course is provided by the eligible education provider or an educational business partner.[3]

    [3] See cl.573.111 and 574.111. Clause 573.111 definition of ‘eligible higher degree student’ para (ia) inserted by SLI 2014, No.163 for applications made on or after 23 November 2014

14. For visa applications in relation to higher education visa subclasses made on or after 22 March 2014 and Subclass 572 visa applications made on or after 23 November 2014, the simplified evidentiary requirements for English language proficiency and financial capacity are only available for applicants who meet one of the above definitions at time of application and time of decision. 

15. An applicant who was not an eligible higher degree or university exchange student at the time of application, who subsequently becomes such a student by the time of decision is not precluded from satisfying the streamlined time of decision ‘genuine student’ criteria provided the visa application was made on or after 24 March 2012, but before 22 March 2014.

16. Amendments to cl.573.223(1A), 574.223(1A) and 575.223(1A), applicable to visa applications made on or after 22 March 2014, require that the applicant is an eligible higher degree or non-award student at time of application and time of decision.[4] This means that an applicant subject to these provisions cannot access the streamlined ‘genuine student’ criterion by changing course and/or course provider after the time of application. Clause 572.223(1A) as introduced for visa applications made on or after 23 November 2014 requires that the applicant is an eligible VET student at time of application and time of decision.

    [4] SLI 2014, No.30.

    Application for Review

17. The applicant applied to the Tribunal on 12 June 2015 for review of the delegate’s decision.

18. On 6 November 2015, the applicant provided the Tribunal with Confirmation of Enrolments (CoE) from Academies Australasia Institute for a Certificate IV in Business; Diploma of Management and Advanced Diploma of Management. He also submitted an extract from the Non University Streamline Educational Provider list, indicating that Academies Australasia Institute is a ‘streamline’ educational provider.

19. In a covering submission, the applicant’s representative referred to cl.572.227A, which states: ‘For paragraph 572.227(b), the highest assessment level does not include assessment level 1’. The submission requested that the applicant be assessed for a subclass 572 streamlined visa and that the application be processed in accordance with ‘the current DIBP policy relevant to exceptional reasons’. The submission referred to the Department’s PAM3 guidelines relating to the requirement of establishing exceptional reasons for certain applicants applying for a student visa in Australia [at 90.1]. It was submitted that as the applicant is now enrolled in courses that are part of the streamlined visa processing, the applicant meets the exceptional reasons for grant criterion.

20. The applicant appeared before the Tribunal on 13 November 2015 and again on 15 July 2016 to give evidence and present arguments.

21. At the hearing the applicant stated that he had arrived in Australia in August 2014 held a visitor visa immediately before applying for his student visa. He stated that at the tie of application, he had an offer of enrolment in a Diploma of Business at Apex College. However, he now has an offer of enrolment from Academies Australasia Institute for a Certificate IV in Business; Diploma of Management and Advanced Diploma of Management. When it was put to him that he needed to establish exceptional reasons for the grant of the visa, he stated that he would like to study business because this would help him in the future.

22. The applicant’s representative reiterated the argument set out in his submission, contending that the applicant is now subject to streamlined visa processing arrangements and exceptional reasons for grant criterion does not apply. 

23. In a submission dated 30 November 2015, the applicant’s representative submitted that as the applicant has now submitted CoE’s in respect of proposed courses of study for streamlined courses, and as these have been submitted prior to decision, the Tribunal should have regard to these in its assessment. Alternatively, the applicant’s representative requested additional time to submit a further CoE for a Bachelor degree in a streamlined course, which would enable the Tribunal to consider the application as a Subclass 573 visa application, as there is no similar provision in the Subclass 573 regulations to that contained in cl.572.212.

24. On 24 December 2015, the applicant’s representative submitted an offer of enrolment in a Bachelor of Business from Wentworth Institute, dated 23 December 2015.

25. On 9 May 2016, the Tribunal contacted the applicant’s representative, enquiring as to whether the offer of enrolment from Wentworth Institute he had previously provided was still valid and whether he had a current CoE.

26. On 12 May 2016, the applicant resubmitted the December 2015 offer of enrolment from Wentworth Institute.

27. It was put to the applicant at the second hearing that cl.573.223(1A) requires him to be an eligible higher degree or non-award student at time of application and time of decision. As noted above, at time of application the applicant was only enrolled in a Diploma of Management at the Australian Vocational Learning Centre. The applicant stated that he is currently enrolled in, and studying towards, a Diploma of Leadership and Management at the Academies Australasia, which is due to be completed in September 2016. He is also enrolled in an Advanced Diploma of Leadership and Management with the same eligible education provider, which is due to commence in September 2016. This evidence is supported by the PRISMS records before the Tribunal.

28. However, at the time of application, the applicant was not an eligible vocational education and training student because he was not enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector provided by an eligible education provider.

29. On the basis of the evidence before it, the Tribunal is not satisfied that at the time of the application the applicant was not an eligible vocational education and training student or an eligible higher education student. Therefore, cl.572.223(1A) and cl.573.223(1A) do not apply to the applicant and the applicant must give the Minister evidence in accordance with the requirements of Schedule 5A for the highest assessment level for the applicant (cl.572.223 and cl.573.223).

30. As noted earlier, as the visa application was made in Australia and the applicant is subject to assessment level 3 in relation to Subclasses 572 and 573, the applicant must establish exceptional reasons for the grant of the visa.

31. At the first hearing when asked whether there were any exceptional reasons for the grant of the visa, he stated that he wanted to do a business course because this would assist him with his future. The applicant reiterated these explanations at the second hearing.

32. Having considered the claims presented by the applicant, in the present case, the Tribunal does not accept that exceptional reasons for the grant of the visa have been established. The Tribunal is not satisfied that the applicant has established exceptional reasons for the grant of the visa and therefore finds that the applicant does not satisfy cl.572.227 or cl.573.227.

33. For the reasons given above, the Tribunal also finds that the applicant does not meet the requirements for the other subclasses within the Class TU. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Shahyar Roushan
    Senior Member