1509168 (Migration)

[2016] AATA 3088

1509168 (Migration) [2016] AATA 3088 (20 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Nazemul Islam

CASE NUMBER:  1509168

DIBP REFERENCE(S):  CLF2015/22176

MEMBER:Shahyar Roushan

DATE:20 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 20 January 2016 at 10:42am

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 25 June 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 13 April 2015. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, 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 (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in a higher education course.

4. According the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, at the time of lodging his application for a student visa, the applicant was holder of a FA-600 Visitor visa. Based on the applicant’s passport and the course of study he is proposing to undertake, his assessment level is assessment level 3.

5. On 5 May 2015, the delegate wrote to the applicant requesting that he provides exceptional reasons for the grant of the visa. The applicant responded on 25 May 2015, essentially stating that he was unable to complete a Masters course during his tenure in Australia as the University of Wollongong had cancelled the Masters course he wished to study. He stated that he had previously spent 32 months in Australia as a student and had complied with his visa conditions. He stated that he is now enrolled in a packaged course to study a Master of Professional Accounting and a Master of Business Administration. After completing these courses, he intends to return to Bangladesh and manage his family’s business. He stated that his sister will support him in Australia and that as a lawyer in his own country he was not aware of the ‘exceptional reason’ requirement at the time of visa application.

6. The delegate refused the visa on 25 June 2015 on the basis that the applicant did not establish exceptional reasons for the grant of the visa as required by cl.573.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

7. The applicant applied for a review of the delegate’s decision.

8. In a letter to the Tribunal, dated 9 January 2016, the applicant stated that he had arrived in Australia on 17 January 2017 on a subclass 600 visa. While he had initially intended to spend time with friends, he changed his plan to further in Australia. He enrolled in a Master of Professional Accounting and a Master of Business Administration. He stated that after completing his Bachelor of Laws from the University of Chittagong, he came to Australia to study a Master of Transnational Crime Prevention. He was only able to obtain a Graduate Certificate in Transnational Crime prevention and returned to Bangladesh before the expiration of his visa to work as a lawyer. However, since he grew up in a ‘business oriented family’ he decided to study business. He is now enrolled in a Bachelor of Business degree as he would like to start from the beginning.

9. The applicant appeared before the Tribunal on 15 January 2016 to give evidence and present arguments. His oral evidence to the Tribunal essentially reflected the arguments he had put forward in his letter of 9 January 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant has established exceptional reasons for the grant of the visa.

12. The Tribunal finds that the application was made in Australia and the applicant is subject to assessment level 3. The Tribunal finds that at the time of application, the applicant was the holder of a specified temporary visa, namely a FA-600 Visa. Accordingly, the ‘exceptional reasons’ for grant criterion (cl.573.227) apply.

13. ‘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 restriction in the criterion, nor by deciding whether he or she departs from the ‘normal’ characteristics of the group who is subject to the restriction.[1]

    [1] Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008) at [29], undisturbed on appeal – Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

14. It was held in Kim v MIAC that 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 which justify, in the mind of the decision-maker, the grant of the visa’.[2]  Beyond such reasons being capable of being described as ‘“exceptional’ in ‘ordinary parlance’, there is no prescriptive definition of the term.[3] 

    [2] ibid at [30]

    [3] ibid at [30]

15. Under departmental guidelines (PAM3),[4] which are not binding on the Tribunal, ‘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 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 600 (Visitor) or Subclass 676 (Tourist) visa granted under s.351 (Ministerial intervention).

    [4] PAM3 - Migration Regulations > GenGuide G - Student visas - Visa application & related procedures > Student Visa Assessment > If applying in Australia – additional criteria at [90.1] (re-issue date 21/5/15).

16. The Tribunal appreciates that the applicant had a previous student visa and obtained qualifications in transnational crime. The Tribunal also appreciates that he would like to study in Australia. However, in the present case, the Tribunal does not accept that exceptional reasons for the grant of the visa have been established. The Tribunal has considered the claims presented by the applicant individually and cumulatively. 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.573.227.

17. The Tribunal has found the applicant does not meet an essential requirement of cl.573.227. The other subclasses within the Class TU visa class have an equivalent provision. For the reasons given above, the Tribunal also finds that the applicant does not meet the requirements for these subclasses. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Shahyar Roushan
    Senior Member