1514421 (Migration)

[2016] AATA 4093

1514421 (Migration) [2016] AATA 4093 (6 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Juan Sebastian Reyes Suarez

CASE NUMBER:  1514421

DIBP REFERENCE:  CLF2015/45204

MEMBER:Lilly Mojsin

DATE:6 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2016 at 11:37am

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 15 October 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 31 July 2015 to study a Diploma of Music at Sydney Ultimo TAFE.

3. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. 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).

4. The delegate refused to grant the visa on 15 October 2015 because the delegate was not satisfied that there were exceptional reasons for the grant of the visa and found that the applicant did not satisfy the requirements of cl.572.227 of Schedule 2 to the Regulations

5. The applicant appeared before the Tribunal on 16 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s teacher, Michael Brown.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant was born on 1 April 1998 and is 18 years of age. On 19 March 2015 the applicant was granted a visitor Visa Class FA.

8. He states that he arrived in Australia on 30 May 2015 with a Visitor Visa, accompanying his mother. He states that his mother will be departing Australia on 20 August 2015 and he wishes to undertake musical studies to university level when his TAFE course is completed

9. The initially applicant applied for the visa in order to study a Diploma of Music at Sydney ultimo TAFE.

   ·A reference from Michael Brown his music teacher, advised that he auditioned him and found he had a unique style of performing combining his Colombian heritage with an Australian perspective as he has attended school in Sydney from year 3 to year 7, is fluent in English and well versed in Australian and Colombian culture. He contributes to the culture of the music course performing with domestic students sharing new ideas through collaboration and enriching the musical lives of the student community. He has helped promote the music department by performing in promotional activities, attracting new enrolments and donating his time.

   ·A further reference from Peter Ellis, International Student Coordinator, at Ultimo TAFE confirms that the applicant went through formal audition prior to commencing his studies in July 2015

   ·A reference from the Catholic Community of North Harbour, from Father Paul Maloney, attests to the applicant contributing to the music Ministry that plays for youth liturgies on most Sunday nights.

   ·Student Reports from the Forest High School, St Kieran’s Catholic School Manly Vale, Harbord Public School

   ·International Student Certificate of Excellence 2016 awarded to the applicant by Diploma of Music Ultimo College

   ·TAFE NSW Letter of Offer, Technical Production Certificate III commencing on 11 July 2016 and ending on 30 December 2016, Sound Production Diploma commencing 30 January 2017 and ending on 30 December 2017

10. The applicant provided a statement to the Tribunal whereby he confirmed that he has completed his Diploma and wishes to continue his musical studies, he would like to become a teacher of music

11. At the Tribunal hearing the applicant stated that if he did not obtain the visa it would set him back, from his future career path. His parents have insurance in Columbia that is to pay for his university course but it requires that he apply within a certain period of time and not commencing his courses now would set him back.

12. The applicant indicated that in order to commence his course at TAFE he was required to attend an audition, prior to obtaining a Certificate of Enrolment.  He further advised the Tribunal that he had advised the Department of this requirement but despite sending the delegate an email outlining this requirement, it was not addressed in the decision refusing him a visa.

13. The applicant explained the course he intended to study was technical and how it related to the needs of a musician and performer. He is a performer in Guitar, Bass Percussion and Vocals. He wants to undertake a performance based course on completion of his TAFE courses and by undertaking these studies he will attain knowledge on how production works. He intends to continue his performance studies in a tertiary course.

14. Michael Brown advised the Tribunal that the applicant has helped promote the college. He moved countries to get a better education. Not getting this visa would set him back and put him at risk of not receiving any money from insurance.

    REASONS AND FINDINGS

15. The applicant is a holder of a passport from Columbia at the time of application for Student (Temporary) (Class TU) visa. At the time of application for the visa, the applicant was the holder of a Visitor Visa Class FA subclass 600 visa.

16. The Tribunal finds that the assessment level applicable to the applicant is level 3.

17. According to cl. 572.227 of the Migration Regulations 1994, applicants for the subclass 572 visa who hold a visitor visa must provide exceptional reasons to justify the grant of a student visa.

18. Clause 572.227 requires that where the visa application was made in Australia and the applicant is subject to assessment level 3 at the time of application, and the applicant was the holder of a Visitor Visa Class FA subclass 600 visa, the applicant is not the holder of a specified temporary visa or a substantive visa, therefore the applicant must satisfy cl.572.227.

19. A visa applicant in the applicant's situation should not be granted a visa unless reasons could be positively identified which would justify the grant, and the reasons must be capable of being described as ‘exceptional’. The term 'exceptional reasons' is not defined in the legislation. The Department provides guidance to its officers through the Procedures Advice Manual. These guidelines are not binding on the Tribunal but regard may be had to them where they are not in conflict with the legislation.

20. Under departmental guidelines (PAM3), '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;

    ·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).

21. These guidelines are not binding upon the Tribunal but may be a relevant consideration when determining what constitutes 'exceptional reasons' in the individual circumstances.

22. The principal authority on the interpretation of cl.57X.227 is Kim v Minister for Immigration and Anor [2008] FMCA 1577. 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). It is commonly used in legislation when giving a decision-maker a power to identify circumstances or reasons justifying the lifting of a statutory rule, where it is intended that the rule will normally apply. On some occasions, the considerations which are intended to identify an exceptional case are expressly or implicitly shown in the framing of the power, but in others the relevant considerations are left undefined. In the latter situation, the decision-maker may appear to be given a very broad discretion to identify and weigh the considerations upon which he or she will decide whether to dispense with the normal rule.

23. In this application the Tribunal has considered the submissions made by the applicant in assessing whether the statutory rule is to be lifted and whether PAM guidelines are relevant. The applicant has completed his Diploma of Music and has a passion in performing arts and cultural events and seeks to make a career in music. He originally applied for the visa whilst he was visiting Australia and not prior to arriving in Australia because he was required to attend an audition. He wishes to continue on with his studies and intends to study technical production and sound production, which he believes are advantageous to his intended career path and further studies at University in music.

24. The Tribunal accepts that the applicant was required to attend a live audition in Sydney in order to gain admission to the Diploma of Music course and he did so arriving with a 600 visitor visa. He has now finished his course successfully and intends to further pursue his studies.

25. The applicant, by not getting this visa whilst remaining on-shore in Australia, states it would set him back and put him at risk of not receiving any money from insurance for his further university studies.

26. The Tribunal does not find that any of these reasons either individually or cumulatively establish exceptional reasons in the sense described above. The Tribunal finds, on balance, that they do not reach the level that could be considered exceptional.

27. As the onus is on the applicant to establish the exceptional reasons, the Tribunal is unable to make a decision in the applicant's favour.

28. The decision under review must be affirmed.

    DECISION

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

    Lilly Mojsin
    Member