1516762 (Migration)

[2016] AATA 4455

1516762 (Migration) [2016] AATA 4455 (22 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jie Yu

CASE NUMBER:  1516762

DIBP REFERENCE(S):  CLF2015/51556

MEMBER:Gina Towney

DATE:22 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 September 2016 at 4:29pm

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 17 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 visa applicant applied for the visa on 19 August 2015. The courses listed were a Diploma in Management, with course dates from 10 August 2015 to 5 August 2016, and a Diploma of Commerce, with course dates from 6 February 2017 to 31 December 2019.

3. In support of his application the applicant made written submissions (undated). The submission recorded the following (in summary):

   ·the applicant previously was in Australia on a Student Visa and studied English in both 2008 and 2009, and completed his High School program in 2010;

   ·The applicant subsequently enrolled in a Bachelors Degree in 2011, and in 2012 transferred to the University of Sydney.  The applicant did not complete his Bachelor’s degree because he left Australia due to family reasons;

   ·The applicant is currently in Australia on SCS 600 Visa to settle his property. During his stay in Australia he made contact with Strathfield College and the Australian Catholic University and would was offered a position to continue his higher education;

   ·The applicant’s de facto partner is currently studying a Masters of Professional Accounting that Macquarie University in Sydney, after she arrived in Australia on a student Visa in May 2015. The applicant has been with his partner since late 2014 and they currently reside together in Sydney.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.573.227, in that he did not establish exceptional reasons for the grant of the Visa.

5. The applicant appeared before the Tribunal on 22 September 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant was represented in relation to the review by his registered migration agent.  The Tribunal has not provided a transcript of the hearing, and is only outlined issues if found to be most relevant to the application. An audio recording of the hearing is available.

6. When asked about exceptional reasons, the applicant said he was no longer young and he would like to finish his studies and return to China and help his family in their business. Asked if there were any other submissions he would like to make, the applicant said no.

7. The Tribunal raised that it would find it difficult to find that the applicant had exceptional reasons for the grant of the Visa. The applicant went on to say had been studying for a long time, and he did not go well on his past courses and did not get good results, but he now wanted to study in Australia.

8. The Tribunal noted the courses listed on the applicant’s student Visa application, including a Diploma of Management, which was due to be completed on 5 August 2016. When questioned by the tribunal, the applicant said that he had been unable to complete the course successfully due to changes with his education provider. Later in the hearing the migration agent said that education provider was no longer operating.

9. Asked what courses he had successfully completed since entering Australia in 2008, the applicant said he completed the Higher School Certificate in 2010. Asked if he had successfully completed any course of study since 2010, the applicant said no.  Later in hearing the applicant’s agent said although the applicant had not made much progress in his studies, he was very honest and had tried his best. The migration agent also stated that, according to the applicant’s own submissions, he was now going well at his studies.

10. When asked about his current enrolment, the applicant initially provided evidence that was confusing and unclear.  However, the applicant subsequently provided evidence of enrolment at Hanny Accreditation, Registered Training Organisation, with an Offer Letter for a Diploma of Business, with course dates from 16 May 2016 to 19 May 2019.  The applicant said he was currently studying and going well.

11. The tribunal asked the applicant how this would impact on his enrolment in the Bachelor of Commerce, with course dates from 6 February 2016 to 31 December 2019, as recorded in the student Visa application.  The applicant said he had changed his enrolment, however when questioned further, he said that he had not actually done so but planned to change his enrolment.

12. Later in the hearing the migration agent said that the applicant had been studying in Australia for a considerable period and had built up strong cultural ties, and it would be to his benefit to be able to continue studying in Australia before returning to China.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant satisfies clause 573.227.  Clause 573.227 records following:

    (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:

    …

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

    …

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

15. An applicant subject to the exceptional reasons clause must establish that there are ‘exceptional reasons for the grant of visa’.  This is a question of fact for the decision-maker.  In considering exceptional reasons the emphasis is on the term ‘exceptional’. 

16. The Tribunal acknowledges that the term has a wide operation and there is no definition which limits its application.  That is, the decision-maker has a nearly unconfined discretion to address the particular circumstances of the case.  However, the tribunal also acknowledges that the decision-maker must assume that the visa applicant 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.   

17. In the current matter, the applicant made prehearing submissions regarding his previous study in Australia, his inability to complete his bachelor’s degree, and his travel to China for family reasons. The applicant also referred to his de facto partner, who is currently studying and Masters of Professional Accounting at Macquarie University in Sydney.

18. At hearing the applicant gave evidence that he would like to study in Australia and return to China to assist in his family business, and the migration agent made submissions regarding the applicant’s strong ties to Australia and his desire to complete his studies.

19. Having considered all submissions made by the applicant, and on the applicant’s behalf, the tribunal is unable to find exceptional reasons for the grant the Visa. That is, the Tribunal finds many students in Australia developed ties to the country and would like to continue studying, many have relationships both in Australia and in China that may benefit or suffer detriment as a result of the person staying or departing Australia, and many people would benefit from further study in Australia. These cannot be considered exceptional reasons.

    DECISION

20. The Tribunal affirms the decision under review.

    Gina Towney
    Member