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

1. 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).

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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

7. 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.

8. 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.

9. ‘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).

10. 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.

11. Under departmental guidelines (PAM3),[7] ‘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; and

    ·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).

    [7] 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).

12. These guidelines are not binding upon the Tribunal but may be a relevant consideration when determining what constitutes exceptional circumstances in a particular case.

13. The applicant provided a written statement to the delegate and a very comprehensive submission to the Tribunal prior to the hearing. The submission is accompanied by multiple statutory declarations and letters of support, academic references and results, evidence of extra-curricular activities, and a chronology of the applicant’s immigration history. The applicant and his aunt both attended the hearing and gave evidence, and the applicant’s migration agent made submissions at that hearing, attending by teleconference.

14. All this material is held on the Tribunal’s file and is not repeated here. It is detailed, carefully prepared, comprehensive and compelling. In summary, the applicant was born in Namibia and completed his secondary schooling there, being admitted into Medical School in Namibia. He came to Australia with his mother and step-father to visit family here. His parents returned to Namibia but the applicant remained in Australia to stay with his aunt and uncle. His original visitor visa was extended and he applied for a student visa in order to study engineering. His enquiries with the university to which he was ultimately admitted resulted in having to undertake preliminary studies in mathematics and another course and he enrolled in a Diploma of Information Technology. He commenced this course of study in March 2015 and completed both by the end of the academic year in 2015. His results were excellent. He was then admitted into the Bachelor of Engineering course and has been studying in that course since the beginning of the 2016 academic year, again achieving excellent results. His referees, personal and academic, have provided very positive references in relation to his academic and personal qualities and his capacity for hard work, determination to succeed and ability and aptitude.

15. The applicant has provided a number of statutory declarations in which he has described the very significant difference in quality between Namibian and Australian universities. The applicant states that having done extensive research into the options available in Australia and in Namibia, he decided with the concurrence of his family that he is capable of achieving excellent results in his studies in a competitive university environment such as Australia, and that if he remained in Namibia he would not be able to use his abilities to their best effect.

16. The evidence before the Tribunal shows that the applicant’s father passed away in 1995 when the applicant was very young. On his death a trust fund was established for the sole purpose of financing the applicant’s education at a university of his choice. The applicant as a child suffered very serious illness requiring his mother to take him to South Africa to access the level of medical and surgical intervention which was not available in Namibia. Because the applicant had excellent scholastic aptitude, the intention had been that the applicant would attend university in South Africa, residing with his mother’s father who has a doctorate in mathematics and science, which are the applicant’s areas of interest. This plan was unable to be fulfilled because the applicant’s grandfather passed away before the applicant completed his secondary schooling. The only other relative to the applicant and his mother is her sister, the applicant’s aunt, with whom the applicant is living in Australia. When the applicant applied to enrol in the Bachelor of Engineering in Australia, the university required him to undertake preliminary studies because his Namibian secondary qualifications could not be accepted. If the applicant had not been able to commence those preliminary studies in March 2015, he would not have been able to commence the Bachelor course in 2016. In the circumstances, the applicant’s aunt made enquiries with the Department and found out that it was possible to apply for a student visa while in Australia but that the applicant would have to demonstrate exceptional circumstances to warrant the grant of that visa.

17. The applicant has now been studying in Australia, awaiting an outcome of his visa application, since March 2015. Despite the uncertainty of outcome, and in the face of having his visa refused by the Department in August 2015, the applicant has achieved unblemished attendance records at each of the three courses of study in which he has engaged (mathematics, information technology and now engineering). He has achieved excellent results in all his studies, with a High Distinction average. He has done this without the support of his immediate family but with the support of his extended family in Australia. Nevertheless, his success has been remarkable, and demonstrative of genuine and obvious talent and ability.

18. With the death of his father and grandfather, the applicant does not have any other avenue to pursue academic excellence other than to continue to study in Australia, or to apply to study elsewhere in the developed world and start over again. Namibia cannot provide him with the level of education which would get the most from his superior abilities, intelligence and demonstrated dedication. Despite the difficulties in his personal life, with the death of his father and grandfather, he nevertheless has a trust fund which can only be put to the use of financing his education.

19. In all these circumstances, the Tribunal is satisfied that the circumstances facing the applicant in relation to his studies, the fact that he has already been studying and excelling in Australia since March 2015, the lack of realistic options to excel academically in his home country or in South Africa, his personal qualities and obvious dedication and ability, and the existence of a trust fund which can only be used for his university education, in combination suffice to qualify as exceptional enough to warrant the grant of a student visa to the applicant.

20. 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

21. 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 Cheetham
    Member