1509088 (Migration)

[2015] AATA 3372

1509088 (Migration) [2015] AATA 3372 (14 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jitender Nandha
Mrs Kawaljeet Nandha
Miss Harseerat Kaur

CASE NUMBER:  1509088

DIBP REFERENCE(S):  BCC2015/1401444

MEMBER:Mary-Ann Cooper

DATE:14 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 14 August 2015 at 1:48pm

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 19 June 2015 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 572 visas under s.65 of the Migration Act 1958 (the Act).

2.    The visa applicants applied for the visa on 15 May 2015. The delegate refused to grant the visas on the basis that exceptional reasons to grant the visas were not established. The applicants provided a copy of the delegate’s decision with their application for review.

3.    The first named applicant (the applicant) appeared before the Tribunal on 13 August 2015 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

5.    The applicant holds a passport of the Republic of India. He confirmed at the hearing that he is seeking to study a Diploma of Business and an Advanced Diploma of Business in Australia, and that he had last held a subclass 600 visa before applying for this student visa.

6.    The issue in the present case is whether the applicant has established exceptional reasons for the grant of the subclass visa 572, as required under regulation 572.227. The Regulations relevantly provide as follows:

572.211

(1)      If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

572.211 (2)      An applicant meets the requirements of this subclause if the applicant is:

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

….

(xxi)      Subclass 600 (Visitor);

….

572.227

If:

(a)      the application was made in Australia; and

(b)      subject to clause 572.227A, 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 572.211:

…

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

…

(T)      Subclass 600 (Visitor);    …

the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

572.227A

For paragraph 572.227(b), the highest assessment level does not include assessment level 1.

7.    The Tribunal finds that the applicant is applying to study a course within the 572 stream and that he made the student visa application in Australia as the holder of a Subclass 600 (Visitor) visa. He therefore met the requirements of cl.572.211 at the time of application. As the holder of a passport of the Republic of India he is subject to assessment level 3, the highest relevant assessment level and which is higher than assessment level one (r.572.227A). On this basis the applicant falls within the terms of cl.572.227(b) and therefore must establish exceptional reasons for the grant of a Subclass 572 visa: cl.572.227.

8.    The delegate’s decision, a copy of which was provided with the review application, records the applicants’ claims regarding exceptional reasons. In response to the Department’s invitation, he stated that he had obtained accommodation and paid for the course, that he did not wish to incur additional expense to return home in order to apply offshore and that his spending money in the Australian education system would provide economic benefit to Australia. The Tribunal notes that the applicant also stated that he wished to learn some new skills to foster growth and success in his business in India and that his study would further bilateral relations because he would be involved in the import/export business with Australia. The delegate did not consider that these constituted exceptional reasons and consequently refused the application.

9.    At the hearing the applicant said that he had applied for a visitor visa because he had wanted to come to Australia to watch the cricket World Cup. While here, he said his friends had advised him to remain and to study. He said he had seen how Australian businesses operate and wanted to learn more so he could apply it to his business in India, which is involved in the grain market. He said that his uncle is looking after the business while he is away. When asked how he and his family are financially supported in Australia, he said that funds are sent to him from his business. He told the Tribunal that he applied for his English language course just before his visitor visa expired and had approval to commence a Diploma of Business (as confirmed by PRISMS records).

10.    The Tribunal explained the requirement for him to establish exceptional reasons for the grant of the Student visa and asked him what his claims were in this regard. He responded that he wanted to study here so he could grow his business in India. He said that, because his business deals with grains, and Australia is a grain-growing country, he considered that he would gain more understanding through his Australian study. The Tribunal explained the meaning of ‘exceptional reasons’ and asked if there was anything more he wished to add. He responded that this was the only exceptional reason he had; he just wanted to study before returning to India.

11.    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 v Minister for Immigration and Anor [2008] FMCA 1577. 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).  It is commonly used in legislation when giving a decision-maker a power to identify circumstances or reasons justifying the lifting of a statutory rule, where it is intended that the rule will normally apply.  On some occasions, the considerations which are intended to identify an exceptional case are expressly or implicitly shown in the framing of the power, but in others the relevant considerations are left undefined.  In the latter situation, the decision-maker may appear to be given a very broad discretion to identify and weigh the considerations upon which he or she will decide whether to dispense with the normal rule.

12.    After an extensive examination of the legislative scheme and instruments relevant to the requirements of clause 573.227 (in similar terms as cl.572.227) 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.

13.    Under Departmental guidelines (PAM3) ‘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 or undertake further studies

• the applicant held a student visa in Australia and was granted a specified temporary visa and now wishes to undertake further study

• the applicant previously held a student visa and now holds either an FA-600 or a TR- 676 (visitor) visa granted under s.351 (Ministerial intervention)[1].

  [1] PAM3: GenGuideG - Student visas - Visa application and related procedures: 89 – if applying in Australia

14.    The Tribunal acknowledges that these guidelines are not binding upon it, however it accepts that they are a relevant consideration when determining what constitutes “exceptional reasons” in the individual circumstances.

15.    In assessing the criterion in issue, the emphasis is on the word ‘exceptional’. As found in Kim (above) the decision maker has a nearly unconfined discretion to address the particular circumstances of the case, however, when determining such exceptions, the decision maker must assume that the visa applicant should not be granted the visa unless some reasons can be positively identified which justify the grant.

16.    The Tribunal has had regard to the Departmental policy on this provision, the only one of which may be applicable to the applicant is the first, that is, a benefit to Australia.  The more detailed policy guidance under ‘benefit to Australia,’ states:

Under policy, exceptional reasons require an applicant to establish that visa grant would improve bilateral relations or provide significant economic benefits to Australia.

17.    On the evidence before it, the Tribunal is not satisfied that the applicants have established that the grant of Subclass 572 visas to them would improve bilateral relations or provide a significant economic benefit to Australia. While the Tribunal understands and appreciates the applicant’s desire to remain in Australia to study, and that he thinks this will benefit his business, it does not consider that these reasons are exceptional, nor does the evidence establish that his expenditure in Australia will provide any significant economic benefit. Other than this, the applicant has only expressed his desire to undertake the course in order to improve his business and to remain in Australia to avoid the expense of travel to and return from India. The Tribunal is not satisfied that it is unusual or out of the ordinary for a person to decide to do further study in order to progress their careers or their business.  The Tribunal was unable to elicit anything further which indicated that there may be exceptional reasons warranting the grant of the visa.

18.    The Tribunal has considered the reasons given by the applicant individually and cumulatively. Having regard to the reasoning in Kim and the ordinary meaning of the words ‘exceptional reasons’, the Tribunal is not satisfied that the applicant has established exceptional reasons for the grant of the Subclass 572 visa and therefore cl.572.227 is not met.

Secondary applicants

19.    Having determined that the applicant does not meet the criteria, the Tribunal has considered the circumstances of the secondary applicants. As the first named applicant was not found to meet 572.227, the dependent applicants cannot satisfy the requirement of 572.322, and there is otherwise no evidence that they are eligible for the grant of any other visa.

DECISION

20.    The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Mary-Ann Cooper
Member