1514793 (Migration)

[2016] AATA 3226

1514793 (Migration) [2016] AATA 3226 (10 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Orsolya Simay
Mr Franciscus Muller

CASE NUMBER:  1514793

DIBP REFERENCE(S):  BCC2015/2071826

MEMBER:Karen Synon

DATE:10 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 10 February 2016 at 11:20am

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 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 applicants applied for the visa on 20 July 2015.  The delegate refused to grant the visa on the basis that the first named applicant (‘the applicant’) did not meet cl.572.227 because the reasons she provided for the grant for the visa were not exceptional.

3. The applicant applied for review of the primary decision on 2 November 2015 and provided a copy of the department’s decision.

4. The applicants appeared before the Tribunal on 9 February 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. At the time of the visa application Class TU contained several subclasses.  The only subclass in respect of which the applicant has made any claims is Subclass 572.  There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass visa within the Class TU.

7. The issue in the present case is whether the applicant satisfies the requirements of cl.572.227.

8. The department’s decision records that at the time the applicant lodged the student visa application, which is the subject of this review, she was the holder of a 651 visitor visa.  This is confirmed by both the applicant’s oral evidence and the department’s movement records which record that the applicant arrived in Australia on 8 May 2015 as the holder of a TV-651 visa that was granted on 27 March 2015 and remained valid until 8 August 2015.

9. The visa application records and the applicant confirmed at the hearing, that she is a citizen of Hungary and holds a Hungarian passport.

10. On the basis of the information relating to the Subclass of visa the applicant is seeking, as the holder of a passport of Hungary and the Gazette Notice which determines the assessment level to which the applicant is subject, the Tribunal finds that the applicant is required to establish exceptional reasons for the grant of a Subclass 572 visa.  The Tribunal finds that the applicant must satisfy the requirements of cl.572.227(B) as she was the holder of a Visitor visa (Class TV) when she applied for the student visa which is the subject of this review.

11. The applicant provided the following relevant statement to the department in support of her student visa application:

    ·The reason for choosing to study in Australia is twofold.  The first reason being Remedial Massage Therapy is a well regarded profession and the level of education is higher than in Europe.  The second reason being by gaining experience in Australia I have better progression opportunities in Europe.

    ·I currently hold a number of complimentary therapies. By taking on this diploma it will open up the pathway to furthering my career.  Ultimately I am seeking a career as an Osteopath and by studying the Diploma I am laying the groundwork for my career choice.

    ·I feel I am a strong candidate for a student visa.  As I have travelled extensively and been fortunate enough to live and work in both Ireland and the USA.  Through my research I have found that Australia offers some of the best education in my chosen profession.  Ultimately my goal is to become an osteopath and I am hoping (sic) by gaining worldwide education and experience will give me an edge in my industry.

    ·Upon completion of my Diploma this will open new avenues of opportunity in Europe for me.  I am fortunate in the fact that my sister was recently married to my husband’s best friend and he has offered us accommodation and support for the duration of our stay.

12. The primary decision records that on 28 July 2015 the delegate invited the applicant to provide a statement in relation to the criterion in cl.572.227 and to establish exceptional reasons for the grant of the visa.  On 28 July 2015 a response was received which stated in summary that the applicant intended to work in Osteopathy and Myotherapy and will contribute to paying taxes and training fees in Australia. 

13. The applicant provided a statement to the Tribunal which includes a detailed explanation of the processes and her communication with the department leading to the visa refusal and further made the following relevant points:

    She is a Hungarian National who has was lived, worked and studied in Ireland since 2014.  She is a member of the European Union and is fluent in English. Her husband is a South African National who migrated to Ireland in 2001 and currently holds dual citizenship.  She and her husband took career breaks from their full-time jobs to travel to south-east Asia and Australia.  They arrived in Australia on 8 May 2015.  Their holiday visas were due to expire on 8 August 2015.  After travelling for a couple of months with their “deadline looming and no immediate pressure to go back home we felt it would be a good idea to extend our stay”.  They were so impressed by the infrastructure and level of education in Australia and the applicant felt she “should use the opportunity to gain additional education in line with [her] objectives; thus the idea of applying for a student visa”.  Her brother-in-law offered them accommodation and additional financial support.  The applicant states she is a “Myotherapist in training” and has already established herself in Ireland.  She was on a bridging visa when she commenced study.  She has paid in excess of $8,200 in medical fees, college tuition and insurance.  She noted that Myotherapy is a popular industry here and so any additional study and experience gained in Australia would have a huge benefit for her in Ireland.

    She feels that the summary of the statement of exceptional reasons in the primary decision does not describe her intentions correctly.  When responding to the Department she noted that any benefits Australia would receive would be in the form of college fees she would pay as a result of her studies and the tax she would pay in the event of any part-time work.  She noted she has every intention of returning to Ireland.  She posits the question  “how can any one individual demonstrate significant economic benefit other than through the taxes they pay “ and notes that being a Myotherapist means she works with people who suffer significantly from various modes and causes pain and discomfort and her work would benefit these people greatly.  She believes the use of ‘exceptional reasons’ is used as an ambiguous means for filtering visa applications and genuinely feels her application has not been considered fully especially in light of the fact that she has dealt with multiple case officers and none have demonstrated or confirmed that they have received all the documentation.

    She applied for and received a tax file number so could have everything in order when she began seeking employment. 

    The applicant further notes that her husband’s situation has not been considered and believes that the lack of information provided by him may have been a contributing factor in her application.  Her husband has no intention of studying or working in Australia as he has no reason to do so.  Much of the work he does requires an online presence and he can work remotely from anywhere around the world.

    In summary the applicant notes: she has always remained within the laws of Australia when applying for the student visa; has been prompt with correspondence to the Department; is enrolled in college and has completed her first semester and started the second semester; has had all the health checks, insurance and everything required for an individual to be issued with a student visa; has spent in excess of $8,200 in the process of applying for a visa and college registration; has accommodation and financial means and if needed further support from an Australian citizen for the duration of their stay in Australia; and they will return to Ireland after she has completed her studies.

14. Throughout the course of the review the applicant provided the following relevant documents:

    ·     Documentation in relation to a Letter of Offer for a Diploma of Remedial Massage at the Max Therapy Institute.

    ·     A Confirmation of Enrolment (CoE) in relation to a Diploma of Remedial Massage which commenced on 20 July 2015 and is due to conclude and 17 July 2016.

    ·     A letter from Max Therapy Institute confirming the applicant is a current student and commenced her Diploma of Remedial Massage qualification in July 2015 and that she has the ”commitment, determination and drive to get the desired qualification and still adhere to her student visa requirements”.

    ·     Receipts for payment of courses.

    ·     Certification and a Statement of Results in relation to a Certificate IV in Massage Therapy Practice which the applicant completed on 8 July 2015.

    ·     A Statement of Attainment certifying that the applicant has attained 3 units offered by St John Ambulance Australia.

    ·     Evidence of health cover from Medibank and Bupa.

    ·     A statement from Lawrence Osborne the applicant’s brother-in-law who writes that he will meet the applicants’ living costs for the duration of their day and providing supporting information about his financial capacity.

    ·     Copies of the applicant’s certified qualifications gained in Ireland which are a: Diploma in Indian Head Massage; Diploma in Pregnancy Massage; Diploma in Reflexology; Diploma in Holistic Massage; Certificate of Competence in Deep Tissue Techniques for the Neck & Shoulder; and Higher Certificate in Retail Management and Marketing.

    ·     A letter of support from Barbara Swiatkiwsky, a qualified remedial massage therapist who writes that the applicant was a student in one of her classes for 20 weeks in 2015 and that she participated enthusiastically and fully in the program.  She was very patient and helped students who were having difficulty understanding English.  She demonstrated excellent therapeutic massage skills and a thorough understanding of all major concepts but was still engaged and willing to learn more.  Ms Swiatkiwsky recommends the applicant as both a student and a future remedial massage therapist.

    ·     A copy of an email from a staff person from the office of Minister Andrew Robb dated 2 November 2015 who relevantly writes:

    On your behalf, I spoke with the Parliamentary Liaison Officer from within the Ministerial Section of the Department of Immigration and Border Protection to ascertain what could be undertaken to assist you...The Department informed me that it is very difficult to gain a Student Visa onshore if holding a Passport from certain countries overseas.  Perhaps you would be better to apply “off-shore” for this first visa?  Subsequent visas (as I understand it) can be applied for onshore.

    ·     Copies of 2 emails the applicant sent to Minister Andrew Robb.  In one dated to November 2015 ( in response to the email above) she relevantly states:

    Thank you so much for taking the time to reply to me.  Your email has given me some insight into why my application may have been rejected.  It would been useful to know the chances of obtaining a visa while onshore was slim to none.  Alas, it seems we are learning the hard way. 

15. The applicant provided a copy of the following (relevant) statement given to the department:

    ·     During my initial visa application I was asked to provide exceptional reasons as to why I should be granted a student visa.  I felt I had addressed these satisfactorily.  I was then asked to provide further information which I did.  I am not sure what else I can provide other than what have already given.  I will try to do my best to summarise my reasons for applying again below:

    Ø My long-term goal is to work in Osteopathy and Myotherapy.  Allowing me to study this Diploma furthers my goal and builds on my already gained certifications and experience.

    Ø Myotherapy is in its infancy in Europe and is not as popular as it is here in Australia.  By studying here and gaining part-time work experience (sic) will give me a big head start on my return to Ireland.

    Ø It is difficult to get recognition in Europe for this field without studying abroad.

    Ø I have lived and studied in Dublin Ireland for the last 10 years.  I have built a foundation for myself and intend to go back there once I have fulfilled my study obligations.

    Ø My sister is married to an Australian citizen who is providing accommodation and any additional financial support while we are here.  I have submitted a letter from him twice stating so…

    Ø Australia was a logical choice for us as my sister and brother-in-law are here and as stated above, I can gain a lot more recognition in my field by studying in Australia.

    Ø I have genuine ambitions and take my education very seriously.  You have asked how will granting me a visa (sic) benefit Australia?  Other than the fact that I can demonstrate I was educated in Australia I can only assume the other benefits will be in the form of taxes and training fees I will pay as a result of any part-time work and my studies; not to mention any Australian residents of the other to treat as a result of my studies.

    Ø I have already noted I am a genuine temporary visa applicant.  I showed proof of financial capacity.  I have no outstanding debts at home or to the Commonwealth of Australia.

    Ø I am more than proficient in English as a result of 10 years of work and study in Ireland and [that] was a prerequisite for me being accepted into the college in the first place.

    Ø I have been approved for various visas (outside of Australia) in the past which I have always complied with.  I am of good character and sound health and already applied for (and been approved for) Overseas Student Health Cover.

16. The applicant confirmed at the hearing that she applied for the visa in order to undertake massage courses in Australia and that was currently studying the third semester of a 4 semester course in Remedial Massage.  She was attracted to study in Australia because she can do a course in ‘dry needling’ here without first doing a four-year course (for example in osteopathy or chiropractic) as is required in Ireland.  She emphasised the more intensive and comprehensive nature of massage tuition in Australia.

17. The applicant said she did not know that she had Condition 8201 attached to her visa which limited any study or training she would undertake to 3 months.  She was only aware of condition 8115.  While a citizen of Hungary she has lived in Ireland for the past 10 years.  In Ireland she relevantly completed a: Diploma in Holistic Massage; Diploma in Indian Head Massage; Diploma in Reflexology; a Diploma in Pregnancy Massage; and a Certificate in Deep Tissue Techniques for the Neck & Shoulder.  All of these courses were completed in 12 months and therefore are not of the same quality of the courses available in Australia.  The applicant said that many remedial massage courses are offered in Ireland but it is only in Australia that she can do the additional qualification of ‘dry needling’ without a formal qualification.  She is very keen to do this additional qualification and believes she will be able to use it in Ireland.

18. Both applicants gave evidence that they pursued the review because they have invested so much money in the process to date (both in course fees, the visa application and health insurance costs) and most importantly because the applicant genuinely wants to finish the study here.

19. The applicant said she did not consider deferring her studies and going off shore to apply for a student visa because it had not even occurred to her to seek a deferral of her studies.  The second named applicant explained the circumstances in which they came to Australia and applied for the visa.  He said they were travelling throughout South-East Asia, Australia and planning to visit New Zealand for their honeymoon after marrying in Ireland the previous year.  When they arrived in Australia they saw that Myotherapy and Dry Needling courses were far more accessible here than in Ireland and that an extended period in Australia would give them the opportunity to travel and see friends as well as afford the applicant an opportunity to pursue her studies.  He is a Business Analyst and Developer who works remotely from anywhere in the world and, as his last project had just wrapped up, there was not any pressing need for them to return to Ireland at that time.  Their decision to apply for a student visa was somewhat “off the cuff” and they had not intended on staying in Australia when they arrived here to visit.  When their visitor visa was finishing they looked at the student visa and it seemed easy.  They would not have bothered if they knew it would be so complex and difficult.  The second named applicant said he could have applied online as an Irish citizen with no need to demonstrate exceptional reasons.

20. The applicant is eligible for Irish citizenship because she has lived in Ireland for 10 years however because she would need to relinquish her Hungarian citizenship she was and is not prepared to do this.

21. The Tribunal noted that although the applicant spoke of her Myotherapy studies and being a “Myotherapist in training” she appeared to only be enrolled in a remedial massage course.  She confirmed this is correct but that her end goal is to be Myotherapist.  The applicant said she has paid a lot of money for her course which she genuinely wants to finish.

22. The second named applicant asked the Tribunal if it would consider delaying its decision until after the applicant finished her course.  The Tribunal said that should her completion be imminent or a matter of weeks it would be prepared to consider this, however the applicant’s own evidence is that she is in the third of four semesters and the Tribunal is not prepared to delay the finalisation of the decision for that lengthy period of time.

23. The Tribunal accepts that the applicant is sincere and genuine in her intention to study advanced massage in Australia and that she has every intention of returning to Ireland to practice her profession.  It found both the applicants to be credible, honest and sincere however they were genuinely confused and perplexed by the requirement that the applicant provide exceptional reasons for the grant of the visa especially when she has been a resident of Ireland and is a citizen of Hungary which is a member of the European Union.

24. 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 v Minister for Immigration and Anor [2008] FMCA 1577 (‘Kim’) . 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.

1. 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:

   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…

2. 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.

3. The Tribunal asked the applicant if she could advance any reasons why she should be granted a student visa onshore that are exceptional, out of the ordinary, unusual or special.  She responded that she did not think the process would be so complex.  The second named applicant said they want to enjoy the culture and life here and that when you get a chance to do something you just do it.  The applicant said she probably interpreted the word ‘exceptional’ differently.  She said she is very genuine and wants to study here.  At other times in the hearing the applicants also emphasised the quality of massage courses in Australia and the fact that she could do additional qualifications such as ‘dry needling’ without a primary 4 year degree as is required in Ireland.

4. The Tribunal does not accept that the mere fact that a person wants to study in Australia, regardless of any previous study or proposed study or whether they have commenced their study and paid fees, amounts to exceptional reasons for the grant of the visa.  Nor does the Tribunal accept that the fact that the applicants have always remained within the laws of Australia when applying for the student visa, been prompt with correspondence to the Department; had all the health checks, insurance and everything required for the grant of a student visa, have accommodation and financial means from an Australian citizen, that they will return to Ireland after the applicant has completed her studies; or that the quality and duration of massage courses is superior in Australia and will that she will therefore have better career progression in Europe are sufficient, either individually or cumulatively to establish exceptional reasons for the grant of the visa.

5. The Tribunal has great sympathy for the applicant and the situation is which she finds herself especially given she has invested $8,200 in the visa application process and on course fees and is over half way through her remedial massage course.  The Tribunal records that as a national of Hungary the applicant is required to establish exceptional circumstances despite the fact that she has lived in Ireland for the past 10 years and is eligible to apply for Irish citizenship.  This places the applicant in an unfortunate and unanticipated situation.  However after considering all of the evidence before it, the Tribunal is not satisfied that any of the reasons advanced by either of the applicants either individually or cumulatively establishes exceptional reasons for the grant of the visa.

6. Therefore, in summary and having regard to all the applicant’s circumstances, the reasoning in Kim and the ordinary meaning of the words ‘exceptional reasons’, the Tribunal is not satisfied that the applicant has established exceptional reasons for the grant of the Subclass 572 visa.

   Conclusion

7. As the Tribunal has found that the applicant does not satisfy cl.572.227, and as no evidence has been provided on which the Tribunal can be satisfied that the applicant meets the criteria for any other of the Student (Temporary) (class TU) visa subclasses, the decision under review must be affirmed.

   Other Matters

8. The Tribunal expressly records that it found the applicant to be sincere, genuine, dedicated and committed in her studies and suggests that should she apply for another student visa offshore (including from a neighboring country such as New Zealand), these observations be given appropriate weight by the delegate in assessing any future visa applications.

   DECISION

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

   Karen Synon
   Member