1512082 (Migration)

[2016] AATA 3133

1512082 (Migration) [2016] AATA 3133 (21 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr IRIN TOPALLI

CASE NUMBER:  1512082

DIBP REFERENCE(S):  BCC2015/1878975

MEMBER:Adrian Ho

DATE:21 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 21 January 2016 at 1:51pm

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 28 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 28 June 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. Generally speaking, 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 (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case 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).

4. The applicant appeared before the Tribunal on 20 January 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. An application for a student visa made in Australia where the applicant is seeking the grant of an initial student visa has a further time-of-decision requirement for certain classes of applicants – the applicant establishes exceptional reasons for the grant of the Subclass of visa specified for the course of study proposed to be undertaken by the applicant. The additional requirement in the present case is to be found in cl.572.227:

   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 :

   (A)  Border (Temporary) (Class TA);

   (C)  Cultural/Social (Temporary) (Class TE);

   (D)  Educational (Temporary) (Class TH);

   (E)  Electronic Travel Authority (Class UD);

   (IA)  Maritime Crew (Temporary) (Class ZM);

   (J)  Medical Practitioner (Temporary) (Class UE);

   (K)  Retirement (Temporary) (Class TQ);

   (LA)  Superyacht Crew (Temporary) (Class UW);

   (N)  Temporary Business Entry (Class UC);

   (NA)  Subclass 400 (Temporary Work (Short Stay Activity));

   (NB)  Tourist (Class TR);

   (NC)  Visitor (Class TV);

   (O)  Working Holiday (Temporary) (Class TZ);

   (P)  Temporary Work (Long Stay Activity) (Class GB);

   (Q)  Training and Research (Class GC);

   (QA)  Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;

   (R)  Temporary Work (Entertainment) (Class GE);

   (S)  Special Program (Temporary) (Class TE);

   (T)  Subclass 600 (Visitor); or

   (ii)  as the holder of a special purpose visa; or

   (iii)  as the holder of a visa of one of the following subclasses:

   (A)  Subclass 303 (Emergency (Temporary Visa Applicant));

   (B)  Subclass 427 (Domestic Worker (Temporary)--Executive);

   (BA)  Subclass 485 (Temporary Graduate);

   (C)  Subclass 497 (Graduate--Skilled); or

   (iv)  as a person:

   (A)  who was not the holder of a substantive visa; and

   (B)  who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);

   the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

7. For paragraph 572.227(b), the highest assessment level does not include assessment level 1: cl.572.227A.

8. The applicant’s written material and oral evidence indicates that the application was made in Australia while the applicant was the holder of a Subclass 600 visitor visa. 

9. The tribunal finds that cl.572.211 was met at the time of application on this basis.

10. On the basis of the information relating to the Subclass of visa the applicant is seeking, as the holder of a passport of the Czech Republic and the Gazette Notice which determines the assessment level to which the applicant is subject, the Tribunal finds that the assessment level is greater than 1, and applicant is required to satisfy cl.572.227 and to establish exceptional reasons for the grant of a Subclass 572 visa.

11. In forming a view as to whether the applicant has established 'exceptional reasons' to the Tribunal's satisfaction, the Tribunal has observed the findings in Kim[1]. In this case His Honour, Smith FM stated at paragraph 7: The word 'exceptional' has dictionary meanings: “of the nature of or forming an exception; out of the ordinary course, unusual, special” (OED).

    [1] Kim v Minister for Immigration and Anor [2008] FMCA 1577

12. His Honour examines the application of similar terms in legislation and the treatment of them on judicial review. At paragraphs 13 and 14 his Honour states that:

    In the present case, the normal rule is that persons holding identified classes of current visas, and with assessment levels higher than 1, are not granted this subclass of student visa if they apply while they are present in Australia. If the dispensing power can be given structure from this context, then it should reveal what are the relevant considerations for deciding whether there are exceptional reasons for granting the visa to the applicant. Jurisdictional error would be found, if a decision-maker strayed beyond these considerations or failed to address them.

    If a particular focus or subject matter or comparison cannot be given to an 'exceptional reasons' dispensing power by a process of legislative construction, then the power should be construed to be unconfined except by its general legislative context and objects…

13. After an extensive examination of the legislative scheme and instruments which underlie the requirement of clause 573.227 (in similar terms as cl.572.227) his Honour states at [29] and [30]:

    …In my opinion, it tends to confirm an intention which the complex structure of the regulations suggests. This is that 'exceptional reasons' 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 ban imposed by cl.573.227, nor by deciding whether he or she departs from the 'normal' characteristics of the group who are subject to the ban.

    Rather, the decision-maker is required to assume that a visa applicant caught by the criterion 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. The reasons must be capable of being described as 'exceptional reasons' in ordinary parlance. Beyond this, it is impossible for the Court to be generally prescriptive as to what these reasons might be, or must be, as a matter of law. In effect, once it is concluded that the Regulations do not define the relevant circumstances for finding 'exceptional reasons' under cl.573.227 by providing a particular focus or comparison or subject matter, the criterion should be allowed to operate so that a decision-maker is given 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

    Tribunal hearing

14. At hearing, the requirements of cl.572.227 were explained to the applicant.

15. It was suggested that the applicant’s assessment level was not 1, and therefore, the applicant had to demonstrate exceptional reasons for the grant of a student visa onshore, and that all subclasses of visa within Class TU contained an equivalent criterion, and that if the tribunal was not satisfied that exceptional reasons existed for the subclass relevant to the course of study proposed, the tribunal would likely not be so satisfied for each of the remaining subclasses.

16. At hearing, the applicant was invited to speak of any matter which was felt to demonstrate exceptional reasons as to why the visa should be granted.

17. The applicant was informed that in applying the case of Kim, the tribunal would take the approach that if the applicant was caught by the criterion the visa should not be granted unless exceptional reasons can be positively identified which the tribunal considers justify the granting of the visa.

18. The applicant made the following points:

    a.He wanted to study a certificate III in hairdressing, a VET sector course;

    b.He agreed the appropriate subclass was 572;

    c.He had no other passport other than that of the Czech Republic;

    d.He did not go offshore to apply for the visa because he was studying at that time;

    e.If he was allowed to complete the course, he would promote Australia back in the Czech Republic and various ways, including hanging his certificate on the wall.

19. Doubt was expressed to the applicant as to whether any of the factors mentioned, or all of them together, would constitute exception reasons for granting the visa.

20. The applicant was a transparent and frank witness. He told the tribunal his migration agent had not explained to him the requirements of cl.572.227 and its equivalents, and that he was ignorant of the criterion both when he applied for the visa, and leading into the tribunal hearing.

21. The applicant spoke of the value of the course and that his employer in his country would be paying for it, and that it was partially complete.  The tribunal accepts his evidence.

22. The tribunal encouraged him to consider any reasons he might have had to apply onshore, and not offshore, despite him not being aware of the criterion at the time.  The applicant did not identify any relevant reasons.

23. Being invited a final time to identify relevant factors, the applicant repeated points made previously and already noted above.

    Findings

24. The tribunal finds that, holding a passport of the Czech Republic and intending to study a vocational certificate course, the specified applicable subclass on the relevant instrument is Subclass 572 and the specified assessment level is 2.

25. The tribunal accepts the applicant’s evidence that he held a Subclass 600 visa at the time of application and that he has never held a student visa.

26. The tribunal finds that to meet cl.572.227, the applicant must establish exceptional reasons for the grant of the visa.

27. As suggested to the applicant, the tribunal does not consider being ignorant of the visa criteria, or having received poor, inaccurate or incomplete advice, to constitute exceptional reasons for granting the visa.

28. The tribunal does not consider that matters of convenience (in making the application in Australia and not travelling offshore to make the application) constitute exceptional reasons for granting the visa.

29. The tribunal accepts the course has value to the applicant and that he has partially completed it and that both he and his employer may be inconvenienced if the tribunal affirms the decision.  However, as pointed out to him, he had, and still has, the option of making a student visa application offshore and therefore still has a prospect of completing the course and returning to his country with the qualification.  Therefore the tribunal does not consider these circumstances to raise exception reasons for granting the visa.

30. The tribunal acknowledges the applicant’s offer to promote Australia and Australian education were he to complete his studies.  That, however, is not an exception reason for him to seek the visa onshore in the circumstances.

31. Finally, the tribunal does not consider that any combination of the reasons proffered, or all of them taken together cumulatively, constitute exceptional reasons for granting the visa.

32. The tribunal finds that there are no exceptional reasons for granting the visa, and the applicant does not meet cl.572.227.

33. Each of the other subclasses within Class TU contains an equivalent criterion to cl.572.227, requiring that the applicant establish exceptional reasons for the grant of the visa. For the reasons above the applicant fails against each of those criteria and subclasses.

34. The tribunal affirms the decision under review.

    DECISION

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

    Adrian Ho
    Member