1510431 (Migration)

[2016] AATA 3149

1510431 (Migration) [2016] AATA 3149 (3 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xin JIANG

CASE NUMBER:  1510431

DIBP REFERENCE(S):  CLF2015/34065

MEMBER:Mara Moustafine

DATE:3 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 February 2016 at 4:51pm

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 14 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 5 June 2015 to undertake study in Australia.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he/she was not satisfied that the applicant had established exceptional reasons for the grant of the visa.

4. The applicant appeared before the Tribunal on 3 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.

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

   RELEVANT LAW

6. 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). The relevant subclass in this case is Subclass 572 Vocational Education and Training Sector visa.

7. The criteria for the grant of a Subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets the criterion in clause 572.227, which specifies that, in certain circumstances applicable in the present case, at the time of decision the applicant must establish ‘exceptional reasons’ for the grant of the visa.

8. The ‘exceptional reasons’ for grant criterion applies where: the visa application was made in Australia; the applicant is subject to the highest assessment level for the relevant course of study; and the applicant, at the time of application, met the requirements of cl.572.211 as the holder of one of a number of classes or subclasses of visa, including a Subclass 600 (Visitor) visa. The legislative requirements of cl.572.227 are detailed in the delegate’s decision. The term ‘exceptional reasons’ is not defined in the Act or Regulations.

9. The department produces for its officers guidance on what may be considered exceptional reasons where these must be established. These guidelines are not binding upon the Tribunal but may be a relevant consideration when determining what constitutes “exceptional reasons” in the individual circumstances. Under the current departmental guidelines ‘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 676 (visitor) visa granted under s.351 (Ministerial intervention).

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant is a citizen of China, aged 39 who arrived in Australia on 6 March 2015 and lodged her Student visa application on 5 June 2015. Her intended courses were: General English, Diploma of Management and Advanced Diploma of Management.

11. The delegate’s decision record of 14 July 2015, a copy of which was provided to the Tribunal, indicates that at the time of lodgement the applicant was the holder of a Visitor (subclass FA-600) visa. Based on the country of issue of her passport and proposed course of study, the assessment level relevant to her application was Assessment Level 3, which required her to either be the holder of a Student visa or establish exceptional reasons for the grant of a Student visa onshore. The delegate was not satisfied that exceptional reasons were established.

12. The issue before the delegate was whether the applicant met the criterion in cl.572.227. That remains an issue and a further issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

13. At hearing the applicant confirmed that she was not currently studying and did not have a confirmation of or offer of enrolment. She said she had studied English for a while but stopped after her visa was refused. The Tribunal noted that it was a basic requirement for the grant of a student visa that an applicant be studying or have a current offer of enrolment.

14. The applicant said she had visited Australia on four occasions starting from her first visit in 2012. Her last arrival was on 6 March 2015. She came to visit her Australian citizen boyfriend and to travel. She held a multiple entry 12 month tourist visa which allowed her to stay for three months each time. She confirmed that she applied for her Student visa on 5 June 2015, which was the same day her tourist visa expired. She said she had intended to apply as soon as she arrived but was unable to do so until June as she had to prepare all her documents. Asked why she did not apply for a Student visa in China before she came to Australia, the applicant said it was because her boyfriend had injured his leg and she had to come to look after him.

15. The applicant understood her Student visa had been refused because she had lodged the application onshore but was unaware that this meant she had to establish that there were exceptional circumstances for the visa to be granted onshore. Asked whether there were any such circumstances, the applicant said it was because her boyfriend was a citizen and she had been looking after him. She wanted to learn some skills and in the future go home to China and develop her career. 

    Exceptional reasons

16. As explained to the applicant at the hearing, in her case cl. 572.227 of the Regulations requires that there be exceptional reasons for grant of a Student visa onshore. In the Tribunal’s view, the reasons put forward by the applicant are not exceptional or unique and could apply to many students and persons wishing to remain in Australia.

17. For these reasons, the Tribunal is not satisfied that the applicant has established exceptional reasons for the grant of the visa and therefore finds that she does not satisfy cl.572.227.

18. The other subclasses within the Class TU visa class have equivalent provisions to cl.572.227. 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.

    Enrolment

19. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’ and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

20. At hearing the applicant confirmed that she was not studying and does not have a current confirmation or offer of enrolment. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

21. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

22. For these reasons, the decision under review must be affirmed.

    DECISION

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

    Mara Moustafine

    
    

    Member