1517357 (Migration) - [2016] AATA 3467

1517357 (Migration) [2016] AATA 3467 (3 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yidi Gu
CASE NUMBER:  1517357
DIBP REFERENCE(S):  BCC2015/2489880
MEMBER:Alison Mercer
DATE:3 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:
·cl.572.227 of Schedule 2 to the Regulations.

Statement made on 03 March 2016 at 12:51pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 November 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).
The visa applicant applied for the visa on 26 August 2015. The delegate refused to grant the visa on the basis that The delegate refused to grant the visa on the basis that the delegate did not consider the applicant had demonstrated exceptional reasons for the grant of the student visa as required by cl.572.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate noted that the applicant had completed a Master of Communications degree while the holder of a subclass 573 (Higher Education Sector) student visa and had then been granted a subclass 600 (Visitor) visa before applying for the current subclass 572 (Vocational Education and Training Sector) student visa. The delegate further noted that the applicant wanted to undertake a Diploma of Interpreting and an Advanced Diploma of Translating as she considered it would enhance her employment prospects in the People’s Republic of China and had been advised that it would be harder for her to apply to do this from China. The delegate did not consider this to be an exceptional reason for the grant of the visa, having regard to examples given in the Department’s policy guidelines.
The Tribunal received a review application from the applicant on 16 December 2015. It was accompanied by an authority by which she appointed a registered migration agent, Mr Michael Wong, to be her representative and authorised recipient for correspondence.
The applicant appeared before the Tribunal on 12 August 2015 to give evidence and present arguments. Her agent made written and oral legal submissions. The Tribunal was assisted by the services of an interpreter in the English and Mandarin languages.
In summary, the applicant’s agent submitted that the Department’s Procedures Advice Manual (PAM3) (paragraph 90.1) provided that exceptional reasons existed if the applicant in question previously held a student visa, and while still in Australia, was granted a class of ‘temporary residence’ visa listed in cl.572.211(2) and now wished to change back from ‘temporary residence’ status to a student visa to undertake further study. He submitted that the applicant’s subclass 573 student visa had been valid until 15 March 2015. On 11 March 2015, the applicant applied for a subclass 600 (Visitor) visa and was granted a bridging visa A. She was granted the subclass 600 visa on 24 March 2015 and on 26 August 2015, applied for the subclass 572 student visa. The applicant’s agent submitted that the subclass 600 (Visitor) visa was a class of temporary residence visa listed in cl.572.211(2), and that she therefore met the intention of PAM3, as she held a bridging visa for a short period only between the expiry of her student visa and the grant of the visitor visa, and the bridging visa in effect replicated the conditions of her student visa. The applicant’s agent further submitted that former student visa holders who applied for, and were granted, subclass 485 (Skilled Graduate) temporary residence visas, and then applied for another student visa while in Australia did not have to demonstrate ‘exceptional reasons’ and it was unfair and inconsistent to require the applicant to have to do so.
The applicant confirmed to the Tribunal the dates of her visa applications, and explained that she wanted to take a break after completing her Masters degree, as it was an intense experience, so she applied for the visitor visa. While holding that visa, she realised that she needed to improve her English skills and decided to undertake the Diploma of Interpreting and Advanced Diploma of Translating at the Australian Institute of Translating and Interpreting. She told the Tribunal that she believed completing these qualifications would make her more marketable on her return to China, and she hoped to find employment with an international company. Alternatively, she would go into her family’s business, which had a number of interests including running a hotel, building and managing commercial property and selling refrigeration equipment. The applicant said that having good English skills and formal qualifications would assist her to deal with foreign companies and clients on behalf of her family’s business. In response to the Tribunal’s query, the applicant said that she had completed all of the subjects in the Diploma of Interpreting but had yet to undertake the final exam. She stopped because she was advised that she could not study for more than 3 months while holding a visitor visa. She believed she would be able to complete the exam if she was successful in obtaining a student visa. She was due to commence the Advanced Diploma of Translation in April 2016 and would complete it in October 2016. She would then return to China. The applicant confirmed that she had prepaid the fees and was unaware that she had to demonstrate exceptional reasons for the grant of the visa onshore when she made the visa application. If she were to return to China now, it would be disruptive to her studies and she would be unlikely to get a refund of the fees. She had also signed a lease until June 2016, which she would have to break if she returned to China. In response to the Tribunal’s query, the applicant said that there were English courses in China, but they are not as well-regarded as the Diploma of Interpreting and Advanced Diploma of Translating at the Australian Institute of Translating and Interpreting, as few courses in China were at the National Accreditation Authority for Translators and Interpreters (NAATI) level.
Following the hearing, the Tribunal received a submission from the applicant’s agent on 2 March 2016 indicating that the applicant had received confirmation from the Australian Institute of Translating and Interpreting that she was eligible to resume her proposed course and was eligible for the Advanced Diploma of Translating by virtue of having completed a Masters degree in English in Australia. The submission was accompanied by a letter of enrolment from the Australian Institute of Translating and Interpreting dated 2 March 2016 confirming the applicant may resume her studies on 25 April 2016 and if she did so, would be expected to complete her course on 2 October 2016.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
RELEVANT LAW
At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Regulations. With limited exceptions not relevant to this case, 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, and the subclass for which the type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2). Under r.1.40A, the Minister must specify by instrument the types of course for each subclass of student visa, except Subclass 576 (AusAID or Defence Sector). For this Subclass the applicant must have the support of the AusAID Minister or the Defence Minister: cl.576.229. Having regard to the applicant’s current enrolment, the relevant subclass in this case is subclass 572 Vocational Education and Training Sector.
The criteria for a subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations.
As is relevant to the circumstances of this application, if the application for the visa is made in Australia, one of the criteria to be satisfied at the time of decision is that an applicant, who at the time of application, held a Class TR tourist visa, must establish exceptional reasons for the grant of a subclass 572 visa. Clause 572.227 provides as follows:
572.227
If:
(a) the application was made ; 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:
(i) as the holder of a visa of one of the following classes or subclasses:
(A) Border (Temporary) (Class TA);
(B) ;
(C) ;
(D) ;
(E) Electronic Travel Authority (Class UD);
(F) ;
(G) ;
(H) ;
(IA) Maritime Crew (Temporary) (Class ZM);
(J) ;
(K) Retirement (Temporary) (Class TQ);
(LA) Superyacht Crew (Temporary) (Class UW);
(M) ;
(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) ;
(BA) Subclass 485 (Temporary Graduate);
(C) Subclass (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 572 visa.
572.227A
For paragraph 572.227(b), the highest assessment level does not include assessment level 1.
FINDINGS AND REASONS
The Tribunal finds that the student visa application was lodged with the Department on 26 August 2015 in Australia. The Tribunal accepts and finds that the applicant was the holder of a subclass 600 (Visitor) visa when she applied for the current student visa. The Tribunal further finds that, as a Chinese national applying to undertake vocational level courses, the applicant is subject to assessment level 3 (as per written instrument IMMI 14/014).
It is not disputed, therefore, that she must establish that she has exceptional reasons for having a student visa granted to her while in Australia.
The term ‘exceptional’ is not defined in the Act or Regulations. Relevantly, the Courts have held 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 restriction in the criterion, nor by deciding whether he or she departs from the 'normal' characteristics of the group who is subject to the restriction. When determining whether ‘exceptional reasons’ have been established, 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'. Beyond such reasons being capable of being described as '“exceptional' in 'ordinary parlance', there is no prescriptive definition of the term. The decision-maker has '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'. Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008) at [29], undisturbed on appeal – Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).
The Macquarie Dictionary (online) defines ‘exceptional’ as ‘forming an exception or unusual instance; unusual; extraordinary.’
The Department’s policy guidelines (GenGuideG – Student visas, Procedures Advice Manual, PAM) provide the following guidance for decision-makers in this context (at section 90.1):
…
Exceptional reasons must exist
Under policy, exceptional reasons may include, but are not limited to the following:
Benefit to Australia
Under policy, exceptional reasons require an applicant to establish that visa grant would improve bilateral relations or provide significant economic benefits to Australia. To determine whether a visa grant would provide improved bilateral relations, s65 delegates must consult their supervisor, and, if appropriate, that supervisor should contact this instruction’s owner for advice prior to contacting DFAT.
Students who have been granted a scholarship by the Australian Government, a State/Territory government or the government of a foreign country may be considered as having exceptional reasons for the grant of an initial student visa in Australia if circumstances have prevented them from applying for their initial student visa from outside Australia.
For example, where required, the Kingdom of Saudi Arabia sponsors chaperones to accompany King Abdullah Scholarship Programme (KASP) students to Australia. In some circumstances these chaperones are awarded their own KASP scholarship when they arrive in Australia to undertake study while acting as chaperone. In these circumstances applicants should submit a letter of support from the Kingdom of Saudi Arabia with their application and s65 delegates may consider this as an exceptional reason for the grant of the visa in Australia on the grounds of benefit to Australia.
Dependant of departing temporary resident
Officers may consider exceptional reasons to exist if the applicant:
·is a family member (for example, dependent child or partner) of a departing temporary residence visa holder and
·has been successfully studying in Australia for at least one year and
·wishes to complete their current course or undertake further studies.
This can include applicants who currently hold a UQ-497 or VC-485 visa but who need to change back to a student visa because they have not met the requirements for skilled migration.
Former student visa holder or temporary visa holder
If the applicant holds a “temporary residence” visa, under policy, exceptional reasons exist if they:
·have previously held a student visa and
·while still in Australia as the holder of the student visa, were granted a class of “temporary residence” visa listed in 57x.211(2) and
·now wish to change back from “temporary residence” status to a student visa to undertake further study.
Exceptional reasons also exist if an applicant holds:
a TH-442 Occupational Trainee visa
a TH-419 Visiting Academic visa or
a GC-402 Occupational Trainee stream visa or
a GC-402 Research stream visa
and wishes to change to a student visa to undertake further study.
Former student visa holder granted a visitor visa under ministerial intervention
If the applicant has previously held a student visa, under policy exceptional reasons exist if they:
have previously held a student visa; and
hold either an FA-600 or a TR-676 visa granted under s351 (ministerial intervention).
...
When exercising a discretionary power, the Tribunal should have regard to policy, as a relevant consideration. However, whether exercising a discretionary or non-discretionary power, policy is not binding on the Tribunal.[1] In Re Drake and MIEA (No 2) (Re Drake No 2) Brennan J stated:
the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case.[2]
[1] See, e.g., Qiao v MIAC [2008] FMCA 380 (Orchiston FM, 28 March 2008) at [29] and Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (Davies J, 12 December 1995).
[2] (1979) 2 ALD 634 at 644.
In addition, the Tribunal has had regard to the findings in 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.
Smith FM examined the application of similar terms in legislation and the treatment of them on judicial review. At paragraphs 13 and 14, his Honour stated 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…
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) Smith FM stated 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 emphasis)

The Tribunal has considered the reasons put forward by the applicant for why it should be satisfied that she does have exceptional reasons for being granted a subclass 572 visa:
·her genuine reasons for wishing to undertake the NAATI qualifications in translating and interpreting in Australia and the difficulties applying offshore for a subclass 572 visa would pose; and
·the similarity of her circumstances to the example of ‘exceptional reasons’ given in the PAM3 guidelines above about former students who hold temporary residence visas and who then make further student visa applications while in Australia.
The Tribunal accepts that the applicant is genuine in undertaking the present NAATI courses, and is not simply seeking to extend her temporary residence indefinitely in Australia in contravention of the aim of the student visa program. The Tribunal found her evidence on this issue (and in general) to be credible and sincere. The Tribunal further accepts that having to go offshore at present and apply for a new student visa would disrupt her plan to undertake NAATI interpreter and translator accreditation, which she hopes to resume on 26 April 2016. It also accepts that there is limited NAATI testing available overseas, including China, as this is consistent with information published by NAATI, which indicates there are 2 test sessions only there per year:
The evidence indicates the applicant has applied for the student visa while a holder of a subclass 600 (Visitor) visa (a subclass listed in cl.572.211(2)). The PAM 3 Guidelines provide exceptional reasons exist if an applicant held a visa of this type and wishes to change to a student visa to undertake study.
As noted above, the Tribunal is satisfied that the applicant has been, and wishes to continue, undertaking NAATI interpreter and translator accreditation.
Whilst the PAM3 guidelines are not binding on the Tribunal, in these circumstances and taking them into account and as the applicant intending to resume her course on 26 April 2016 (having completed all of the Diploma of Interpreting bar the final examination), the Tribunal is prepared to accept the evidence establishes in her situation exceptional reasons for the grant of the visa.
On that basis, the Tribunal finds that the applicant satisfies cl.572.227 of Schedule 2 to the Regulations.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:
·cl.572.227 of Schedule 2 to the Regulations.
Alison Mercer

Member