1509861 (Migration)

[2016] AATA 4187

1509861 (Migration) [2016] AATA 4187 (25 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Longji Wang

CASE NUMBER:  1509861

DIBP REFERENCE(S):  BCC2015/1792099

MEMBER:Miriam Holmes

DATE:25 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 25 July 2016 at 3:58pm

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 3 July 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 June 2015 to undertake study in Australia. 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, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Migration Regulations 1994). The relevant subclass in this case is Subclass 571.

3. The criteria for the grant of a Subclass 571 visa are set out in Part 571 of Schedule 2 the Regulations. Relevantly to this case they include cl.571.227. Broadly speaking, for visa applications made in Australia, it requires that if a person makes an application for a Student (Temporary) (Class TU) Subclass 571 visa in Australia, and the applicable assessment level is an assessment level other than assessment level 1, and at the time of application the applicant was the holder of certain specified visas, then the applicant must establish exceptional reasons for the grant of the subclass 571 visa.

4. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.571.227 because the delegate was not satisfied that there were exceptional reasons for the grant of the visa.

5. The applicant appeared before the Tribunal on 22 July 2016 by teleconference to give evidence and present arguments. The applicant was accompanied by his father and the Tribunal also received oral evidence from his father, Mr Canxiang Wang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.571.227.

9. The applicant has applied for a Student (Temporary) (Class TU) Subclass 571 visa. The requirements for a visa include the requirement set out in clause 571.227. Clause 571.227 provides that if a person makes an application for a Student (Temporary) (Class TU) Subclass 571 visa in Australia, and the applicable assessment level is an assessment level other than assessment level 1, and at the time of application the applicant was the holder of certain specified visas, then the applicant must establish exceptional reasons for the grant of the subclass 571 visa.

10. The Tribunal made the following findings based on the oral evidence and documentary evidence provided by the applicants, including the confirmation of enrolment and the delegate’s decision record:

    ·     The applicant is a citizen of China.

    ·     On 25 May 2015 the applicant arrived in Australia on a visitor (subclass 600) visa.

    ·     On 22 June 2015 the applicant lodged an application for a Student (Temporary) (Class TU) Subclass 571 visa.  This application was made when the applicant was in Australia. At the time of lodgement of the visa application the applicant was the holder of a subclass 600 visa.

    ·     In accordance with the relevant determination the relevant assessment level was assessment level 3.

11. The Tribunal finds that the applicant has made an application for a Student (Temporary) (Class TU) Subclass 571 visa in Australia, and the applicable assessment level is assessment level 3, and at the time of application the visa applicant was the holder of a certain specified visa, namely a subclass 600.

12. Therefore the Tribunal must be satisfied that the applicant establishes there are exceptional reasons for the grant of the subclass 571 student visa. The phrase “exceptional reasons” is not defined in the Regulations or the Act. The Tribunal notes that in the judgement of Kim v MIAC [2008] FMCA 1577 the Court noted 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’.[1] 

    1. Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008) at [30], undisturbed on appeal - Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

13. The Tribunal had regard to the policy set out in PAM3. However, the Tribunal observes that whilst it may be guided by policy it is not bound to follow it. The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.

14. In assessing whether there are exceptional reasons for the grant of the subclass 571 visa the Tribunal made the following findings, in addition to the findings above, based on the oral evidence and the documentary evidence provided by the applicant:

    ·The applicant was born in 2000 and is aged 15 years.

    ·In May 2015 the applicant successfully completed his Junior Secondary (Middle) school in China.

    ·On 3 June 2015 the applicant enrolled in Year 10 at Concordia College Secondary School in Adelaide. The confirmation of enrolment for this course was created on 3 June 2015.

    ·On 3 July 2015 the department delegate refused the application for the student visa as the delegate was not satisfied that there were exceptional reasons for the grant of the student visa.

    ·On 21 July 2015 the applicant commenced his studies at Concordia College Secondary School, at the start of term 3.

    ·The applicant only attended Concordia Secondary school for about one month. He ceased studying as his English language skills were not sufficient to continue with his Year 10 studies in Australia.

    ·The applicant subsequently attended an English language course at Eynesbury College in Adelaide to improve his English language skills. He attended for approximately 5 months.

    ·The applicant resided with his father and uncle in Adelaide in 2015. Sometime in late 2015/early 2016 the applicant, his father and uncle moved residence to Queensland. The applicant and his father moved to Queensland as his uncle decided to move to Queensland.

    ·On 9 February 2016 the applicant commenced year 10 studies at St Catherine’s Catholic College in Proserpine, Queensland.

    ·The applicant is due to undertake science and English exams in August 2016 and further exams in his other subjects in September 2016. The applicant will undertake his final year10 exams at the end of 2016 school year.

    ·The applicant has not sat the Senior High School Entrance Exam in China. There was a Senior High School Entrance Exam in China in July 2015.

    ·The school year commences in September each year in China.

15. The Tribunal also took into account the following information that the applicant and his father gave to the Tribunal. The applicant agreed with the evidence of his father.

16. The applicant described that he did “alright” in his schooling at the Middle School in China. He stated that he did reasonably well in China, achieving marks between A and C, although this varied from subject to subject. The applicant stated that he was good at maths and science related subjects. The Tribunal asked the applicant what the plan was in coming to Australia on visitor visas, and he replied that the plan was to come with his father to Australia to have campus tours and to see how schools are in Australia.  The applicant stated that after they arrived they did sightseeing and visited some schools, although then stated they only attended and visited one school namely Concordia College. The applicant stated that they chose to enrol at Concordia College because his uncle had a working relationship with the school. The applicant stated that he attended year 10 for one month from 21 July 2015 at Concordia however he didn’t have sufficient language skills to stay at the school and needed to work on his language skills. He attended the English language school for approximately 5 months.

17. The applicant stated that if he returned to China that he was afraid that he would not be able to continue his education in China because he did not undertake the high school entrance exam. He stated that he was too old to stay at middle school and was unable to commence high school as he had not completed the necessary exam. The Tribunal asked why the applicant stayed in Australia and he stated that he liked the way of teaching and Australia itself. The Tribunal asked the applicant why they did not apply for a student visa prior to his arrival in Australia, in response the applicant was silent and then responded that he had no idea. The Tribunal asked the applicant why he and his father did not return to China after the visa application was refused on 3 July 2015 rather than commence studies in Australia some weeks later. The applicant responded that it has always been a childhood dream to study overseas. He said once he was coming to Australia there was no way of turning back - there would have such an impact on his continuation of his education in China. The applicant stated that by early July 2015 he had made progress in his English studies and if he was to return to China he would feel he would have to start again in his English language studies. The Tribunal queried how the applicant made English language skills progress by 3 July 2015 when his student visa had been refused and he confirmed that he had not attended school at that time but he had studied English himself privately.

18. The Tribunal also spoke with the applicant’s father, Mr C Wang. The applicant’s father told the Tribunal that he brought the applicant to Australia with him to gain an understanding of Australia. He said that they had an impression that Australia was a good place for their son and so they decided to stay in Australia. The applicant’s father stated that since they arrived  in Australia the applicant asked to study in Australia because it was a dream of his to study overseas and the applicant did the research on the Internet, like the way of teaching and how they teach in Australia.

19. Is in the context above the Tribunal considered the various reasons advanced to establish exceptional reasons in this case.

20. In the written submissions lodged with the Tribunal it is submitted that there are exceptional reasons in this case as the applicant has already commenced studying year 10 at St Catherine’s Catholic College and if he were required to travel offshore and wait to obtain a student visa for 4 – 6 weeks it would cause a high level of disruption to the applicant and his education. In the submission it notes that the applicant would miss school exams scheduled in August and September 2016 and that missing a month of school would affect the development of the applicant’s English language skills needed for his studies. During the hearing the applicant stated that an exceptional reason was that he had started gaining English language skills in Australia and if he were to return to China he would lose the skills that he has acquired. The Tribunal does not consider that being absent from school in Australia for a period of 4 – 8 weeks to obtain an offshore student visa constitutes exceptional reasons to grant the visa. The applicant can arrange with the Australian secondary school to study and take exams from offshore or to undertake the exams later in the year and he can attend English language schools in China in the period, if necessary to maintain his English language skills. Many children in Australia use distance education to pursue studies and it may be open to the applicant to pursue such options, or use the internet and other resources with his school to continue his education overseas for a short period. The Tribunal also considered, that even if the applicant was unable to pursue studies offshore for 4 – 8 weeks, in such a short period the Tribunal does not consider that the applicant would be so disadvantage that he would unable to resume his studies in the last term and to catch up on the missed subject matter covered at school. The Tribunal is mindful that it is only Year 10 – this is not a schooling year that has external assessments (eg like VCE or HSC) or has a score that is determinative of the tertiary education options available to the applicant.

21. The Tribunal is not satisfied that the impact on the applicant’s schooling and English language skills for a period of 4 – 8 weeks so that the applicant can return to China and applying for an offshore student visa constitutes exceptional reasons for the grant of the visa.  

22. Further, the Tribunal considers that the fact that with the passage of time in the visa application process and the review application process he has completed a substantial proportion of Year 10, does not constitute exceptional reasons.  As at the time the visa application was lodged the applicant had not commenced Year 10 and at the time the visa application was refused the applicant had not commenced Year 10. 

23. Further in the written submissions lodged with the Tribunal it is submitted there are exceptional reasons in this case because if  the visa application is refused by the Tribunal the applicant may need to repeat the school year (Year 10) in Australia which would have “disastrous” consequences on the academic skills  and social relationships already formed by the applicant. The written submissions note that if the applicant was required to repeat this school year that he would have to wait until January 2017 when the school year starts to recommence his secondary studies in Australia and he would be idle for six months at home in China. During the hearing the applicant stated that he has made friends in Australia and his classmates are happy if he could stay in Australia.

24. The Tribunal is not satisfied on the evidence that the applicant would be required to repeat Year 10 in Australia, if the visa application is refused and he has to return to China to apply for an offshore student visa. There is no evidence before the Tribunal indicating that an Australian school would require the applicant to repeat Year 10. Even if the applicant is delayed in resuming studies in Australia and is required to repeat year 10 in 2017 , assuming a student visa is granted, the Tribunal does not accept that repeating Year 10 in 2017 would have “disastrous” consequences on the applicant. The applicant would still be aged 16 years for most of 2017 and able to socialise with other Year 10 students. The applicant in recent years has had to adjust to a new school and new school peers – the Tribunal considers this is possible if the applicant repeats year 10. From an academic perspective, the repetition of a year of school is not “disastrous” and other students in Australia have had to repeat a year and continued to progress through school. 

25. Further in the written submissions it is stated that the applicant’s father is concerned that if they have to return to China and apply for a student visa from offshore that the applicant’s father will have incurred living costs, as well sacrificed time to support his son in studies in Australia, and these costs and time would be wasted if the applicant was required to repeat the school year. The Tribunal does not consider that the financial impact on the applicant’s father and the time lost to the father, if the applicant and his father are required to return to China to apply for an offshore visa, constitute exceptional reasons for the grant of the visa. As set out below, this was a cost the applicant’s father chose to incur with full knowledge that his son had not been granted a student visa in Australia. Further, the choice to remain in Australia and potentially waste time in Australia was a decision the applicant’s father took in full knowledge that his son had not been granted student visa. The potential outcome of additional financial expenses and time lost in Australia was a risk the applicant and his father took by remaining in Australia after the student visa application was refused.

26. Further in the written submissions it is stated that the applicant’s father is concerned about the effect on the applicant and his motivation to study if the visa application is not granted and he is required to return to China to reapply for a student visa. The Tribunal does not accept that the applicant will lose motivation if he is required to reapply for a student visa from China. The applicant described studying overseas was a lifelong dream and in such circumstances the Tribunal considers that the applicant will remain motivated to progress his studies to achieve his dream to study overseas.

27. During the hearing the applicant referred to his inability to advance in his education in China if he were to return to China now. The applicant stated that he had not undertaken the high school entrance exam in China and he was too old to stay at middle school in China.  The applicant also stated there were exceptional reasons to grant the visa because if he was to return to China and was unable to pursue his studies as he had not completed the high school entrance exam he would stay home in China and do nothing. The applicant stated that because he is caught between middle school and high school he would not be able to attend school and he was too young to work. The Tribunal asked the applicant why he could not return to China and undertake the high school entrance exam in July this year and the applicant responded because of his age. The Tribunal is not satisfied that there are exceptional reasons to grant the visa because the applicant did not sit his high school entrance examination in 2015 and therefore cannot progress to high school in China. The Tribunal was not satisfied on the evidence available that the applicant could return to China and not sit the high school entrance exam at a time prior to the resumption of the Chinese school year in September 2016. Further, the Tribunal is not persuaded that the applicant would sit home and do nothing because he cannot enter high school. It is evident the applicant is motivated and, in his own evidence he stated that whilst in Australia he was teaching himself English prior to commencing school in Australia. The Tribunal was not persuaded that the applicant could not arrange to sit the high school entrance exam on his return to China. Further, the Tribunal took into consideration that it was open to the applicant to return to China in July 2015 to sit the entrance exam but he and his father chose not to, and this was a matter within their control. In such circumstances, the Tribunal is not satisfied that not completing the high school entrance exam in July 2015 and the potential consequences in not sitting the high school entrance exam constitute exceptional reasons.   

28. In the written submission to the Department dated 1 June 2015, the applicant submits there are exceptional reasons in this case as he has a genuine interest to pursue further studies in Australia and has a strong preference for the Australian education system and admires the teaching method, the way students are encouraged to be innovative and creative. It further submits that the applicant admires the idea that the Australia education system focuses on developing student’s academic skills in contrast to China where the academic system focuses on academic results. Further it notes that he is an excellent academic performance as well as having outstanding music skills. The Tribunal notes that all applicants for a student visa must have a genuine intention to stay in Australia temporarily for the purposes of study and are required to meet various progress requirements in their study. The Tribunal did not consider the applicant’s interest in pursuing studies in Australia, his academic progress and his interest in the Australian education system is exceptional, it is very common amongst most student visa applicants. In this context the Tribunal did not consider that the applicant’s genuine study intentions, academic progress and interest in Australian education constitute exceptional reasons for the grant of the visa.

1. The applicant’s father also asserted that there were exceptional reasons in this case because a friend who has adopted a similar migration path has successfully been able to secure a student visa for his son. The applicant’s father told the Tribunal that a friend of here’s and explain to him how they had applied for an onshore student visa for his son and his son was successful in being granted a visa. The applicant’s father thought there was a good chance to his son to use this migration approach also. The Tribunal is not satisfied that there are exceptional reasons to grant the visa because the applicant’s father’s friend successfully secured an onshore student visa.

2. In the submissions dated 1 June 2015 the applicant referred to the embarrassment and the pressure of questions that he would suffer if he returned to China early and had not completed his studies in Australia. The applicant notes in the submission that when the applicant’s enrolment was accepted by Concordia College he happily announced to his friends and relatives that he is coming to Australia. Further in the written submission dated 1 June 2015 there is reference to the applicant suffering the stress, fear and anxiety pending the outcome of any student visa application and that he would be unwilling to  go out with other persons to avoid embarrassment. The Tribunal notes that the applicant can return to China and apply offshore and seek to complete his studies in Australia and the applicant and his father can explain to family and friends why he has returned to China, even if it is for a short period. The concerns associated with applying for a student visa and awaiting the outcome of the process does not in the Tribunal’s view constitute exceptional reasons for the grant of the visa – many applicants suffer this concern due to the uncertainty of the visa application process.   The Tribunal is not satisfied that the potential embarrassment or pressure of questions from family and friends about the circumstances of returning to China constitutes exceptional reasons in this case.

3. The applicant and the applicant’s representative have submitted that the current circumstances of the applicant and the impact on him if he were to return to China to apply for an offshore student visa constitute exceptional reasons for the grant of the visa. The Tribunal has considered each of the matters pertaining to the applicant’s current circumstances that have been raised above. However, the Tribunal considers that the applicant’s current circumstances have to be considered in the context of the decisions made in 2015 that have brought about the applicant’s current circumstances. It is clear that the applicant and his father applied to come to Australia on visitor visas (rather than a student visa) and then applied onshore for a student visa and student guardian visa. The applicant and his father made the decision to arrive on visitor visas on 25 May 2015 and within 14 days the applicant had visited Concordia College and enrolled at the College. The applicant then applied for a student visa. This student visa was refused. However, rather than return to China to undertake the High School Entrance Exam in China, the applicant and his father chose to remain in Australia and the applicant commenced Year 10 on 21 July 2015 with full knowledge that the student visa application had been refused. The applicant pursued these Year 10 studies but was unsuccessful and so within several weeks he ceased his year 10 studies and pursued English language studies for several months at an English language school. The applicant then chose to recommence Year 10 studies at a new school in Queensland and has been undertaking these studies whilst waiting for the review application process. These decisions were all matters within the control of the applicant and his father and it is clear they chose a pathway to seek for the applicant to obtain a migration status as a student (as this pathway had been successfully achieved by a friend) rather than apply offshore for a student visa and then travel to Australia on a student visa for the 2016 school year. In this context the Tribunal did not consider that the applicant’s current circumstances constitute exceptional reasons for the grant of the visa.

4. The Tribunal has considered the matters above both singularly and cumulatively and is not satisfied that there are exceptional reasons for the grant of the student visa.  After considering the information, the Tribunal is not satisfied there are exceptional reasons for the grant of the student visa.

5. The applicant has made no claims in respect of the other subclasses of visa that fall within the Student (Temporary)(Class TU) visa and on the information available, the Tribunal is not satisfied the applicant could satisfy the criteria for these subclasses.

6. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.571.227, and therefore, does not meet the requirements of cl.571.227 of Schedule 2 to the Regulations.

7. For applicants in Australia who do not hold a substantive visa at the time of visa application, the other subclasses within the Class TU visa class have a requirement that is the same as cl.571.227. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.

   DECISION

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

   Miriam Holmes
   Senior Member