1511560 (Migration) - [2016] AATA 3897

1511560 (Migration) [2016] AATA 3897 (17 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr KYLE ANTHONY WOLFF
CASE NUMBER:  1511560
DIBP REFERENCE(S):  BCC2015/1558321
MEMBER:Ruth Cheetham
DATE:17 May 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:
·cl.573.227 of Schedule 2 to the Regulations.

Statement made on 17 May 2016 at 3:58pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 August 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 26 May 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 573 although before the delegate it was subclass 572.
The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.572.227 because there were no exceptional circumstances to justify the grant of the visa. Subclass 573 includes an equivalent provision.
The applicant appeared before the Tribunal by teleconference on 9 May 2016 to give evidence and present argument. The Tribunal also received oral evidence from Ms van der Merwe, the applicant’s aunt. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573 Higher Education Sector. He is the holder of a Namibian passport and accordingly the highest assessment level applicable is Assessment Level 3 (“AL 3”): IMMI 14/014
The applicant was born on 12 November 1994. The applicant arrived in Australia on 9 December 2014 as the holder of a subclass 600 Visitor visa. He travelled with his mother and stepfather. They all travelled briefly to New Zealand on 1 January 2015 and returned to Australia on 15 January 2015. On 26 May 2015 while still in Australia the applicant lodged an application for a student visa, subclass 572 Vocational Training and Education Sector. He has subsequently enrolled in a Bachelor of Engineering degree…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 3897
Decision Date: 17 May 2016

CaseChat Overview and Summary

This matter concerned an application for a Subclass 573 Higher Education Sector visa by a Namibian passport holder who was in Australia on a Subclass 600 Visitor visa. The applicant had initially applied for a Subclass 572 Vocational Training and Education Sector visa while in Australia, but subsequently enrolled in a Bachelor of Engineering degree, making Subclass 573 the relevant visa class at the time of the decision. The core dispute revolved around whether the applicant had established "exceptional reasons" for the grant of the visa while remaining in Australia, as required by Clause 573.227 of the Migration Regulations.

The Tribunal was required to determine the meaning and application of the "exceptional reasons" criterion under Clause 573.227. This involved considering whether the applicant's personal circumstances could constitute exceptional reasons, and how such reasons should be assessed by a decision-maker. The Tribunal noted that the criterion does not require the applicant to depart from the normal characteristics of those subject to the restriction, but rather to positively identify reasons that justify granting the visa. The Tribunal also had to consider the discretion afforded to the decision-maker in assessing these circumstances.

In its reasoning, the Tribunal referred to established case law, including *Kim v MIAC*, which clarified that "exceptional reasons" are not narrowly defined and can encompass personal circumstances. The Tribunal emphasised that the decision-maker has a broad discretion to consider whether an applicant should be an exception to a ban on granting a visa within Australia. The Tribunal concluded that the applicant had indeed established exceptional reasons for the grant of the visa, finding that the applicant met the requirements of Clause 573.227.

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration. The reconsideration was to proceed with the direction that the applicant had met the criteria under Clause 573.227 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573 Higher Education Sector. He is the holder of a Namibian passport and accordingly the highest assessment level applicable is Assessment Level 3 (“AL 3”): IMMI 14/014 The applicant was born on 12 November 1994. The applicant arrived in Australia on 9 December 2014 as the holder of a subclass 600 Visitor visa. He travelled with his mother and stepfather. They all travelled briefly to New Zealand on 1 January 2015 and returned to Australia on 15 January 2015. On 26 May 2015 while still in Australia the applicant lodged an application for a student visa, subclass 572 Vocational Training and Education Sector. He has subsequently enrolled in a Bachelor of Engineering degree and accordingly the relevant subclass at the time of this decision is subclass 573. Clause 573.227 precludes most AL 3 applicants from being granted an initial student visa while in Australia unless the applicant establishes exceptional reasons for the grant. Relevantly, it provides: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) visa;the applicant establishes exceptional circumstances for the grant of a Subclass 572 visa. ‘Exceptional reasons’ in the context of cl.573.227 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] 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] [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).[2] 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). Beyond such reasons being capable of being described as ‘exceptional’ in ordinary parlance, there is no prescriptive definition of the term.[3] Similar to the phrase ‘exceptional circumstances’ in the context of visa cancellation, the emphasis is on the term ‘exceptional’, and the term is one which may have a wide operation. No definition which limits its application should be adopted unless the limitation appears from the words of the relevant statutory provision.[4] The decision-maker has “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”.[5] Exceptional reasons may be demonstrated by personal circumstances.[6] [3] 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). See also Ali v MIBP [2014] FCCA 1630 (Judge Jarrett, 22 July 2014) at [8] - [9].[4] In Ali v MIBP [2014] FCCA 1630 (Judge Jarrett, 22 July 2014), the Court held at [8] – [9] that these remarks by Judge Raphael in Gurung v MIBP [2013] FCCA 2009 (Judge Raphael, 29 November 2013) at [9] regarding the phrase ‘exceptional circumstances’ in the now repealed r.2.43(2)(b) in the context of s.116 cancellation are apposite and relevant to the phrase ‘exceptional reasons’ in the context of cl.57x.227. [5] 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). [6] In Baig v MIBP [2016] FCCA 570 (Judge Driver, 16 March 2016), the applicant argued that the Tribunal’s finding that the circumstances raised by the applicant were ‘not exceptional, they are personal to her’ misconstrued the exceptional reasons test. The Court held at [24] – [26] that the Tribunal did not dismiss the applicant’s reasons simply because they were personal to her. Read fairly and as a whole, the Tribunal was aware of, and considered, each of the reasons advanced by the applicant, leading to the conclusion that they could not properly be characterised as exceptional, in circumstances where she could have, but had not, sought to undertake any study in the period since she was notified of the visa refusal.

Decision

Reasons for decision

The Tribunal is therefore satisfied that the applicant meets cl.573.227(1) and that he has established exceptional reasons for the grant of a subclass 573 visa.DECISION The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:·cl.573.227 of Schedule 2 to the Regulations.Ruth CheethamMember

Ratio Decidendi

Legal Principle Established

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