1511995 (Migration)

[2016] AATA 3725

1511995 (Migration) [2016] AATA 3725 (12 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Terry Musarira

CASE NUMBER:  1511995

DIBP REFERENCE(S):  BCC2015/1833567

MEMBER:Lesley Hunt

DATE:12 April 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 12 April 2016 at 3:49pm

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 13 August 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 June 2015. The delegate refused to grant the visa on the basis that cl.572.227 was not met because the applicant was unable to establish exceptional reasons for the grant of the visa onshore.

3. The applicant appeared before the Tribunal on 12 April 2016 to give evidence and present arguments.

4. 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 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. 

9. 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” for the purpose of cl.572.227. 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).

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant provided the following information in his visa application and review application.  He was born on 15 June 1972 in Harare, Zimbabwe.  He married in the year 2000 and his wife, two children and his mother live in Zimbabwe.  His brother, a medical practitioner, lives and works in Australia as a temporary resident. 

11. The applicant arrived in Australia on 27 April 2015 as the holder of a Visitor (Class FA) subclass 600 visa.  The visitor visa ceased on 27 July 2015. 

12. In his application for the student visa the applicant stated that he is a self-employed farmer and a leadership trainer in Zimbabwe.  However his passion has always been in auto electrics.  He has been unable to find a reputable and competent skills trainer in Zimbabwe and he would like to study auto electrics in Australia as it provides world class, current and innovative training.  These skills will equip him for future trade and he will be in line with current technology.  He will be able to be self-employed or find employment easily in the field of auto electrics after receiving top class training in Australia.  He chose TAFE because it is a reputable educator in Australia.

13. On 2 July 2015 an officer from the Immigration Department wrote to the applicant advising that because he is in Australia on a subclass 600 visitor visa and he is from Zimbabwe, an Assessment Level 3 country, he must establish exceptional reasons for applying onshore for the subclass 572 student visa. 

14. On 3 July 2015 the applicant responded in writing.  In summary the applicant stated that his original intention in visiting Australia was to spend time with his brother who has been in Australia for seven years.  The applicant runs a horticulture business in Zimbabwe however the business has been “bedevilled by frequent breakdown of machinery and vehicles”.  His brother advised him to look into the possibility of obtaining skills in motor vehicle and machine repairs as this would cut the expenses involved in running his horticulture business if he was able to repair the machinery and vehicles himself.  He made inquiries at TAFE on the Gold Coast and was encouraged by staff there to undertake a course in auto-electrics.  The applicant consulted with his family and decided to apply for the July 2015 intake.  Time and financial constraints made it imperative to make an onshore application for the student visa so he could study at TAFE.  The applicant stated that he has no intention of staying in Australia beyond the duration of the course.   

15. The applicant’s brother wrote a letter of support for his brother’s onshore student visa application. His brother stated that he has worked in Australia since 2008 as a General Practitioner on the Gold Coast.  He has offered his brother the necessary financial support for his studies in Australia.  His brother will return to Zimbabwe at the conclusion of his studies.  The skills his brother gains will give him the necessary wherewithal to succeed in the passionate pursuit of his chosen career.

16. The delegate refused the visa on 13 August 2015 stating that exceptional reasons for the grant of the visa onshore had not been established.  As this is required by cl.572.227 of Schedule 2 to the Migration Regulations, the visa cannot be granted.

17. The applicant applied for review of the decision and provided a detailed supporting statement dated1 September 2015. In summary, the applicant states that the term “exceptional reasons” is not defined in the legislation.  His personal circumstances for applying for the visa onshore are sufficiently exceptional to allow for the grant of the visa onshore.  The completion of the course will benefit the applicant and there will be a benefit to Australia also.  The applicant states that since 2002 he and his wife have operated a horticulture business on a 10 hectare plot in Zimbabwe.  The property is jointly owned.  They produce cabbages and potatoes for the local vegetable market and supermarkets.  The applicant is the operations manager and his wife is in charge of procuring seed, fertilisers and chemicals for each cropping season.  The business possesses several motor vehicles and trucks.  They use electric motors for general power generation and irrigation. The equipment used in their horticulture business is always in need of repair and maintenance which contributes to a large proportion of their operational costs.

18. The applicant states that if there is an electrical fault and rainfall is low or non-existent in mid-season, entire crops are lost as they have to hire auto electricians who are not competent in performing machinery repairs, or they have not been able to find the relevant skills tradesmen in time.  This then requires them to restart the cropping season at great cost in the recapitalisation of fertilisers, seed and labour.  Each initial cost of a cropping season is in excess of $10,000 USD for just 2 ha of potatoes.

19. The applicant states that he decided to apply for the TAFE course as auto electrics are his passion and acquiring skills in this field will greatly improve efficiency in his business and reduce the heavy repair and maintenance costs.  He could also outsource his skills and improve revenue.  The TAFE course is a suitable means of obtaining these skills so that he can further prosper in the business.  He applied for the student visa onshore as without this course his business operation will continue to experience breakdowns of equipment and the reduced efficiency that occurs as a result.

20. The applicant states that his livelihood and ability to further prosper in the business is directly linked to the ability to learn the skills offered through the TAFE course.  He has applied onshore rather than offshore as his family would suffer hardship if he is made to return to Zimbabwe without having taken steps to be on the way to completing the qualification.  The course will enable him to install, maintain, diagnose faults and repair electrical wiring in computer based equipment commonly found in earthmoving and agricultural machinery.  Given his extensive background in farming, the opportunity to share his background with other students on the course would greatly benefit the learning process; assist in knowledge and information sharing on farming equipment, while directly adding to the experience of Australian students on the course.

21. At the hearing the applicant submitted copies of documents evidencing his and his wife’s horticultural farming business and the related costs, including the cost of electrical and mechanical repairs to farming equipment, machinery and vehicles.  Also submitted was a letter of financial support for the applicant by his brother.

22. At the hearing the applicant clarified that his daughter is currently in Australia as an overseas student studying public health at Griffith University. The applicant clarified that he has been supported financially by his brother since arriving in Australia at the end of April 2015.  He stated that his wife is running the family business in Zimbabwe and other people assist her in this regard.  He stated that it has been very hard for him emotionally to be living away from his wife and family and away from home; however it is important for him to study auto-electrics and this is why he has pursued the onshore student visa application. His intention in coming to Australia was to spend time with his brother; however his brother is aware of the difficulties he often has with the vehicles and equipment needed for running the horticultural business in Zimbabwe and suggested he study auto-electrics in Australia so that he could learn new skills and cut costs.  The applicant clarified that his brother often has to help him out financially because of the problems with equipment breakdown the length of time it takes to have equipment and vehicles repaired. 

23. The Tribunal explained the legal requirements of cl.572.227 in particular the need for the applicant to establish exceptional reasons for the grant of the visa onshore.  The Tribunal referred to the dictionary meaning of the word “exceptional” – namely “special”, “extraordinary”, “unusual” and “not typical”.  The Tribunal put to the applicant that the reasons he has submitted are “typical” reasons a person would want to study in Australia – namely to acquire new skills, to improve their income, and cut costs in relation to equipment and vehicle repairs. 

24. The applicant responded that when he made the application onshore he was not aware of the need for, or meaning of “exceptional reasons”.  The costs of travelling and applying offshore and the additional time it would take to have the offshore application processed led him to apply onshore.  He had hoped he would be able to study in Australia and have completed the course by now.  He confirmed his intention to return to Zimbabwe and his wish to be able to use newly acquired skills in auto-electrics to improve his livelihood and benefit his family and community.  The applicant emphasised that if he undertook the course now in Australia he would be able to share knowledge of horticulture with the other students and this would be of benefit to Australia. 

25. The representative submitted that the reasons for applying onshore are exceptional in the applicant’s case.  While his situation and the difficulties he faces might be typical for farmers in Zimbabwe, the opportunity to study auto-electrics in Australia and return with new skills and to share these skills with other farmers in Zimbabwe is an exceptional reason for the applicant to be granted the student visa onshore. Also the applicant is an experienced horticultural farmer and could share this knowledge with other students in Australia.

26. The applicant told the Tribunal he had been married for 20 years and it has been very hard to be away from home so long and this illustrates how important it is for him to be able to do the course in Australia.

27. The Tribunal has carefully considered all the claims and evidence provided by the applicant in support of the review application.  Whilst the Tribunal has sympathy for the applicant’s circumstances, the Tribunal is unable to find anything extraordinary or unusual about the applicant’s reasons for applying onshore for the visa.  In the Tribunal’s view the majority o people wishing to study auto-electrics wish to do so in order to increase their skills, follow an interest in this field, and improve their economic circumstances through increasing their knowledge and skills.  People applying onshore for the student visa do so to cut down on costs and time involved in travelling offshore.  The Tribunal finds that the applicant’s reasons for wanting to apply onshore for a student visa to study auto-electrics at TAFE are “typical”, rather than “not typical”.  The applicant’s willingness to share information and knowledge with other students in Australia and with other farmers in Zimbabwe is commendable; however it is not at a level that would improve bilateral relations or lead to significant economic benefit, and as such is not an “exceptional” reason for the purpose of cl.572.227 of the Regulations. 

28. The Tribunal is unable to be satisfied on the evidence before it that the applicant’s reasons are extraordinary, special, or unusual.  His reasons are therefore not exceptional.

29. As the Tribunal has found that the applicant has not established exceptional reasons for the grant of the subclass 572 visa onshore, the applicant does not meet cl. 572.227 of Schedule 2 to the Regulations. 

30. The Tribunal has found the applicant does not meet an essential requirement of cl.572.227. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION 

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

    Lesley Hunt
    Member