1512922 (Migration)

[2016] AATA 3092

1512922 (Migration) [2016] AATA 3092 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xiaojun Gong
Ms Chen Fang

CASE NUMBER:  1512922

DIBP REFERENCE(S):  BCC2015/2052122

MEMBER:Adrian Ho

DATE:19 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 19 January 2016 at 3:50pm

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 2 September 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 July 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 visas on the basis that the primary visa applicant (the applicant) did not satisfy the requirements of cl.570.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations), the delegate not being satisfied they had exceptional reasons for the grant of the visa.

4. The applicants appeared before the Tribunal on 19 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from their authorised recipient, Ms Yang.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. Mr Gong is referred to as the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.570.227:

   If:

   (a)  the application was made in Australia; and

   (b) subject to clause 570.227A, 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 570.211:

   (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 570 visa.

8. For paragraph 570.227(b), the highest assessment level does not include assessment level 1: cl.570.227A.

9. The applicant’s written material and oral evidence indicates that the application was made in Australia while the applicants were the holders of Subclass 600 visitor visas. 

10. The tribunal finds that cl.570.211 was met at the time of application on this basis.

11. On the basis of the information relating to the Subclass of visa the applicant is seeking, as the holder of a passport of China and the Gazette Notice which determines the assessment level to which the applicant is subject, the Tribunal finds that the applicant’s assessment level is greater than 1, and applicant is required to satisfy cl.570.227 and to establish exceptional reasons for the grant of a Subclass 570 visa.

12. In forming a view as to whether the applicant has established 'exceptional reasons' to the Tribunal's satisfaction, the Tribunal has observed the judgment 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

13. 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…

14. After an extensive examination of the legislative scheme and instruments which underlie the requirement of clause 573.227 (in similar terms as cl.570.227) 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

15. At hearing, the requirements of cl.570.227 were explained to the applicants.

16. It was suggested that being holders of passports from China, neither applicant’s assessment level was 1 and as is recorded in the copy of the delegate’s decision the applicant gave to the tribunal, the visa application was made in Australia while the applicant held a Subclass 600 visa.

17. It was suggested that in these circumstances, 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.

18. 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 where it appeared that the Regulations otherwise imposed a general ban on the granting of a student visa to holders of specified visas who are not at Assessment Level 1 while they remain onshore.

19. 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.

20. The applicant made the following points:

    a.He read out a letter that he wrote making the following points;

    b.He came to Australia on a tourist visa and applied in Australia while on that visa;

    c.The agent who helped him said it would be much quicker to apply for a student visa in Australia;

    d.He was a chef in a five star restaurant in China;

    e.He wants to study English;

    f.The second applicant does not propose any study for the visa;

    g.The agent in China promised him that his employer would be able to sponsor him for the visa;

    h.He got his visitor visa from China using the agent, and paid around 10000 RMB;

    i.His first employer took 10000 AUD from him and more than 3000 AUD in order to apply for an English course for him;

    j.The Chinese agent told him it would be easy to get a student visa onshore;

    k.That employer then on-sold the restaurant to a new owner who also promised the previous owner that the applicant would be assisted to obtain the visa;

    l.His new employer took 16700 AUD in September 2015 in order to help him get a 457 visa;

    m.It was his understanding that he would be helped to get a 457 visa, even before he came to Australia;

    n.He told them he had lodged the 457 application for them but later they found out he had not lodged any application;

    o.The restaurant was closed because money was owed to the landlord;

    p.The business owner denied taking money from them and they have lost contact with him.

21. 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.  It was suggested that these circumstances might explain why the application was made onshore, but may not constitute exceptional reasons for making the visa application in the way it was made. 

22. The applicant was asked numerous times if there were any other factors he wished the tribunal to consider.

23. The applicant made these points:

    a.He was embarrassed by the situation;

    b.Learning English was important for him;

    c.Part of the money they had was borrowed from friends and family;

    d.He said he was misled.

24. Ms Fang made the following points:

    a.They want to learn English and it would be helpful in their work;

    b.The agent promised that they could study.

25. Ms Yang, the authorised recipient, said that the applicants had already been disappointed in their time in Australia and it would be beneficial for them to study English.

26. It was suggested that the events related suggested that ultimate the applicants were ignorant of the visa criteria.  It was suggested that ignorance of the visa criteria in circumstances where migration advice is readily available in Australia might not constitute exceptional reasons for the visa to be granted.

27. Being invited a final time to put forward considerations, the applicants repeated points made previously and already noted above.

    Findings

28. The tribunal finds that the applicants hold passports from China and the applicant proposes to study an English language course, and that therefore the specified applicable subclass on the relevant instrument is Subclass 570 and the specified assessment level, and the highest assessment level, is 3.

29. 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.

30. The tribunal finds that to meet cl.570.227, the applicants must establish exceptional reasons for the grant of the visa.

31. Essentially, both applicants and their authorised recipient argue that through either deception, or simply poor advice, they had lost money and believed that they would meet the criteria for the student visa in circumstances where they were applying onshore as holders of visitor visas holding passports from China.

32. The result of this, on their evidence, is that they applied onshore thinking they qualified for the visa and they were ignorant of the criterion on which they have been refused and also ignorant that they had to show exceptional reasons for the grant of the visa.

33. As suggested at hearing, the tribunal does not consider being ignorant of the visa criteria, or having received poor or inaccurate advice, to constitute exceptional reasons for granting the visa.  It was suggested to them that had they sought professional migration advice, they might have better understood the visa criteria and might have put themselves in a position to make an application which would meet the criteria.

34. The applicants also ask the tribunal to give them a positive decision because they feel cheated by people both in Australia and China and so they might regret less having come to Australia.  The tribunal sympathise with these sentiments, but as suggested at hearing, the tribunal does not consider these to be exceptional reasons for the grant of the visa.  The discretion of the tribunal does not extend so far as to find there are exceptional reasons because that decision would be of solace to the applicants.

35. 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.

36. The tribunal finds that there are no exceptional reasons for granting the visa in the case of either applicant, and neither applicant meets cl.570.227. Each of the other subclasses within Class TU contains an equivalent criterion to cl.570.227, requiring that the applicants establish exceptional reasons for the grant of the visa. For the reasons above the applicants fails against each of those criteria and subclasses.

37. The tribunal affirms the decision under review.

    DECISION

38. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Adrian Ho
    Member