1509893 (Migration)

[2016] AATA 4128

1509893 (Migration) [2016] AATA 4128 (19 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Fahmida Shahinur
Mr Shafiq Ahmed

CASE NUMBER:  1509893

DIBP REFERENCE(S):  CLF2015/30824

MEMBER:Shahyar Roushan

DATE:19 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.212 of Schedule 2 to the Regulations.

Statement made on 19 July 2016 at 9:55am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 22 May 2015. The delegate decided to refuse to grant the visas on 7 July 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted 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); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. At the time of lodgement, the first named applicant (the applicant) was the holder of a Temporary Work (Skilled) (UC457) visa as a dependant. Where the applicant is the holder of this type of 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 573 visa on the basis of a Conformation of Enrolment (CoE) submitted by the applicant to the Department, indicating that she was enrolled in a Bachelor of Business at the Holmes Institute (CRISCOS Code: 02767C). 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 7 July 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.

6. The applicant appeared before the Tribunal on 15 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant Law

   Exceptional Reasons

9. 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.

10. 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.

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

12. 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

13. 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.

14. 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

15. 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.

16. 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

17. 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. 

18. 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.

19. 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

20. In support of the application for review, the applicant provided the Tribunal with Confirmation of Enrolments (CoE) from Holmes Institute for a Bachelor of Business and an extract from the Non University Streamline Educational Provider list, indicating that Holmes Institute Pty Ltd is a ‘streamline’ educational provider.

21. In a covering submission, the applicant’s representative referred to cl.573.227A, which states: ‘For paragraph 573.227(b), the highest assessment level does not include assessment level 1’. The submission requested that the applicant be assessed for a subclass 573 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.

22. On 11 July 2016, the applicant submitted a new CoE from Holmes Institute Pty Ltd (CRISCOS Code: 02639M).

23. Clause 573.223(1A) requires the applicant to be an eligible higher degree or non-award student at time of application and time of decision. The evidence before the Tribunal indicates that at time of application the applicant was enrolled in a Bachelor of Business at the Holmes Institute (CRISCOS Code: 02767C). The applicable instrument specifying eligible education providers for cl.573.211 appears to specify that institution as an eligible education provider (see IMMI 15/003). The evidence before the Tribunal also indicates that at time of decision the applicant was enrolled in a Bachelor of Business at the Holmes Institute (in Melbourne) (CRISCOS Code: 02639M), which is also an eligible education provider under the relevant instrument.

24. On the basis of the evidence before it, the Tribunal is satisfied that the applicant is subject to streamlined visa processing arrangements. The Tribunal is satisfied that at the time of the application and at the time of decision the applicant was an eligible higher education student as required by cl.573.223(1A).

25. Therefore, cl.573.227 no longer applies in this case, and the applicant is no longer required to meet that requirement.

26. No other specific issues were raised by the delegate in refusing to grant the applicant a visa and none clearly arise on the material before the Tribunal. In these circumstances, the appropriate course is to remit the application for further consideration.

27. In order that a permissible direction be made, the Tribunal finds that the applicant is an eligible higher degree student and that she has a CoE in each course of study for which she is an eligible higher degree student. As such, the Tribunal is satisfied that the applicant meets cl.573.212.

    DECISION

28. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.212 of Schedule 2 to the Regulations.

    Shahyar Roushan
    Senior Member