1516540 (Migration)

[2016] AATA 4313

1516540 (Migration) [2016] AATA 4313 (31 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Hasina Fahad
Fahad Ahmed

CASE NUMBER:  1516540

DIBP REFERENCE:  CLF2015/45822

MEMBER:Lilly Mojsin

DATE:31 August 2016

PLACE OF DECISION:  Sydney

DECISION: The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.227 of Schedule 2 to the Regulations.

Statement made on 31 August 2016 at 10:50am

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 12 November 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant [applicant] applied for the visa on 31 July 2015 in order to study a Master of Professional Accounting [07683F] at the Australian Institute of Business and Management Pty Ltd trading as King’s Own Institute (CRISCOS Code: 03171A) commencing on 13 July 2015 and ending on 10 July 2017.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.573.227 of Schedule 2 to the Regulations because the first named applicant had not established exceptional reasons for the grant of the student visa at the time of application as she was the holder of a Subclass 600 tourist visa and based on her country of nationality and her course of proposed study she was subject to assessment level 3.

4. The applicant appealed that decision on 1 December 2015 to this Tribunal, annexing a copy of the Department decision to the application.

5. The applicants appeared before the Tribunal on 18 August 2016 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

7. The issue in the present application is whether the applicant meets the time of decision criterion in cl.573.227.

8. At the time of application the first named applicant was the holder of a Subclass 600 tourist visa. Where the applicant is the holder of this type of visa when making an application for a Class TU visa in Australia he or she must, in most cases, establish exceptional reasons for the grant of the visa (see relevantly cl.573.227 of the Regulations).

9. Clause 573.227 relevantly states:

   If:

   (a) the application was made in Australia; and

   (b) subject to clause 573.227A, 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 573.211:

   (i) as the holder of a visa of one of the following classes or subclasses:

   ………

   (T) Subclass 600 (Visitor);

   the applicant establishes exceptional reasons for the grant of a Subclass 573 visa.

10. The 'exceptional reasons' for grant criterion only applies where the visa application was made in Australia, the applicant is subject to assessment levels 2, 3, 4, or 5 , i.e. the applicant is not subject to streamlined visa processing arrangements and at the time of application, the applicant was either:

    ·the holder of a specified temporary visa; or

    ·if the applicant did not hold a substantive visa, immediately before ceasing to hold substantive visa, the applicant held a specified visa.

11. The specified temporary visa classes and subclasses for student visa applications include Subclass 600 (Visitor).

12. The term ‘exceptional reasons’ is not defined in the Act or Regulations. 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 or the applicant previously held a student visa and now holds a Subclass 676 (visitor) visa granted under s.351 (Ministerial intervention).

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

14. The streamlined student visa processing [SVP] arrangements allow students who lodge their applications with a CoE to be assessed as though they are a lower migration risk, regardless of their country of origin. This means that these applicants will generally have reduced evidential requirements when applying for a student visa. On 22 March 2014 SVP arrangements were extended to certain eligible non-university higher education providers for bachelor, masters or doctoral degree level courses and from 23 November 2014 streamlined visa processing arrangements, similar to those in place for universities and non-university higher education providers, became available to prospective students of selected eligible education providers who offer advanced diploma level courses.

15. Applicants meeting the definition of ‘eligible higher degree student’ for a Subclass 573 or 574 visa or ‘eligible university exchange student’ or ‘eligible non-award student’ for a Subclass 575 visa at the time of application, must have a CoE in each course of study for which they meet that definition.

16. An ‘eligible higher degree student’ is an applicant for a Subclass 573 or Subclass 574 visa where:

    • the applicant is enrolled in a principal course of study for the award of a bachelor’s degree or a master’s degree by coursework, or for visa applications on or after 23 November 2014, an advanced diploma in the higher education sector (Subclass 573) or for the award of a master’s degree by research or a doctoral degree (Subclass 574); and
    • the principal course of study is provided by an eligible education provider; and
    • if the applicant proposes to undertake another course before, and for the purposes

    of, the principal course, the applicant is also enrolled in that course, and that course is provided by the eligible education provider or an educational business partner.

17. For visa applications in relation to higher education visa subclasses made on or after 22 March 2014, the simplified evidentiary requirements for English language proficiency and financial capacity are only available for applicants who meet one of the above definitions at time of application and time of decision.

18. Amendments to cl.573.223(1A), applicable to visa applications made on or after 22 March 2014, require that the applicant is an eligible higher degree or non-award student at time of application and time of decision. This means that an applicant subject to these provisions cannot access the streamlined 'genuine student' criterion by changing course and/or course provider after the time of application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The delegate of the Department refused the visa as the delegate was not satisfied that the applicant had established exceptional reasons for the grant of the Visa.

20. The applicant provided to the Tribunal a letter from a lecturer in the Master of Accounting Course, at King’s Own Institute dated 12 August 2016, stating that the applicant is known to him since July 2015 when she enrolled into the Master of Accounting and took the Principle of Accounting and is currently taking the Accounting Information System. The applicant has 100% class attendance, fluent English proficiency and is a valuable contributor in class. Insik Chang opined that the applicant will be a highly valuable addition to Australian society, where she could develop and apply her extraordinary talents.

21. Also provided to the Tribunal was a

    ·Medibank Health Insurance Policy Certificate,

    ·Student Academic Record dated 28 July 2016 for the Master of Professional Accounting

    ·Details of enrolment

    ·Transcript from Institute of Business Management Karachi Pakistan

22. At the Tribunal hearing, the applicants said that they came to Australia with a tourist visa to decide whether to study. The applicant studied, in Pakistan, a Bachelor of Business Administration at CVM Institute of Business Management which is affiliated with Canada. She married and did not work for 5 to 6 years. The situation is not the same anymore, she needs to take over her father’s business on return to Pakistan. She needs to be equipped with the skills for her father’s import/export business, called Arco International. It imports different items from China and sells in Pakistan. To expand the business is a problem as she needs the right skills. She has passed all her exams, to date and she anticipates completion of her studied prior to the official date of completion of 10 July 2017.

    REASONS AND FINDINGS

23. The Tribunal finds that the delegate's decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

24. The applicant is a holder of a passport from Pakistan.

25. The Tribunal finds the applicant is a national of Pakistan at the time of application for Student (Temporary) (Class TU) visa on 31 July 2015. At that time the applicant was the holder of a subclass 600 visa.

26. The Tribunal finds that the assessment level applicable to the applicant is level 3:IMMI 14/014.

27. The applicant was enrolled in a principal course of study, a Master of Professional Accounting [07683F] at the Australian Institute of Business and Management Pty Ltd trading as King’s Own Institute (CRISCOS Code: 03171A). This institution was not, at the time of application, an eligible education provider (see IMMI 15/003). The Tribunal finds that the applicant is not subject to streamlined visa processing arrangements. 

28. The Tribunal finds that cl.573.227 applies.

29. Clause 573.227 requires that where the visa application was made in Australia and the applicant is the subject to assessment level 3 at the time of application, and the applicant was the holder of a UC 600 visa, which is not the holder of a specified temporary visa or a substantive visa, the applicant must satisfy cl.573.227. The combination of cl.573.211 and cl.573.227 results in visa criterion, for certain applicants for a Student (Temporary) (Class TU) visa who apply in Australia, must establish 'exceptional reasons' for the grant of the visa.

30. In regard to 'exceptional reasons', Smith FM states in Kim v MIAC [2008] FMCA 1577 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.

31. 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…

32. After an extensive examination of the legislative scheme and instruments which underlie the requirement of clause 573.227 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.

33. The Tribunal has considered the reasons given by the applicant during the hearing and the documents provided to the Tribunal. 

34. The applicant has been studying in Australia, at a high level and has achieved excellent results. She has the support of her lecturer of the Master of Accounting Course, a course accredited by CPA Australia. Evidence from her education provider records that she has completed more than 50% of her studies, and the Tribunal accepts the applicant's evidence that she is due to complete her course prior to 10 July 2017.

35. The Tribunal accepts that she needs to take over her father’s business on return to Pakistan and needs to be equipped with the skills for her father’s import/export business. The Tribunal accepts that, in this instance, the applicant should be given the opportunity to complete her course. The applicant’s total tuition fees amount to $24 000, which is a positive contribution to the financial economy of Australia.

36. In light of the applicant’s overall circumstances, the Tribunal accepts that the applicant has established 'exceptional reasons' for the grant of the visa.

37. The Tribunal finds that the applicant meets cl.573.227.

38. As no other specific issues were raised by the delegate in refusing to grant the applicant a visa, the appropriate course is to remit the application for further consideration.

    DECISION

39. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.227 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member