1600065 (Migration)

[2016] AATA 3494

1600065 (Migration) [2016] AATA 3494 (15 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jupinder Singh

CASE NUMBER:  1600065

DIBP REFERENCE(S):  BCC2015/3286015

MEMBER:Karen Synon

DATE:15 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 15 March 2016 at 2:15pm

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 16 December 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 applicant applied for the visa on 5 November 2015.  The delegate refused to grant the visa on the basis that the applicant did not meet cl.570.227 because the reasons he provided for the grant for the visa were not exceptional.

3. The applicant applied for review of the primary decision on 4 January 2016 and provided a copy of the department’s decision.

4. On 23 February 2016 the Tribunal invited the applicant to appear at a hearing on 15 March 2016 to give evidence and present arguments relating to the issues in his case.

5. On 11 March 2015 the Tribunal received a request to postpone the hearing on the basis of a medical condition, namely a leg abscess.  A medical certificate provided was dated 10 March 2015 but recorded that the applicant “should take rest due to medical condition from 10/3/2016 to 15/02/2016. 

6. On the morning of 15 March 2015 the applicant was advised, via his representative, that the request for a hearing postponement has not been granted and that the hearing would proceed as scheduled due to both the inadequacy of the medical certificate and the nature of the matter on review.  The applicant was advised that given the issue appears to be a sore leg the Tribunal is prepared to hear his matter via telephone as it is a straight forward matter and the hearing should last for no more than 15 minutes.  Prior to the hearing the Tribunal received advice that the applicant would attend via telephone.

7. The applicant appeared before the Tribunal on 15 March 2016 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.  All parties attended the hearing via telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 570.  This is because the applicant applied for the student visa to undertake Certificates III and IV in EAL (Further Study) courses.  There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass visa within the Class TU.

10. The issue therefore in the present case is whether the applicant satisfies the requirements of cl.570.227.

11. The department’s decision records that at the time the applicant lodged the student visa application, which is the subject of this review, he was the holder of a Visitor Subclass 600 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 11 August 2015 as the holder of a FA-600 visa that was granted on 3 August 2015 and remained valid until 11 November 2015.

12. The visa application records, and the applicant confirmed at the hearing, that he is a citizen of India and holds an Indian passport.

13. On the basis of the information relating to the Subclass of visa the applicant is seeking, as the holder of a passport of India 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 570 visa.  The Tribunal finds that the applicant must satisfy the requirements of cl.570.227(B) as he was the holder of a Visitor visa (Class FA) when he applied for the student visa which is the subject of this review.

14. In a submission to the Tribunal the applicant relevantly contended:

    I entered Australia on a visitor visa to visit my relatives and friends.  After coming to Australia I experienced the quality of Australian education when I spoke to some of the overseas students who are already studying various courses in Australia.

    I have visited a lot of countries around the world which include New Zealand and England both these counties are English speaking countries and offer education to international students.  I have explored options to studying these courses in these countries as well but when I experienced the quality of Australian education and as compared to Australian education system, it is much better an option than England and New Zealand.

    I understand that I could have applied from my own country i.e. India but felt it would be convenient, save time and money if I could make an application while in Australia.  I am a law-abiding person and respect the laws and values of Australia and will abide by any visa restrictions that I will be required to follow.  I am a sports person who had to quit my education at an early period due to my commitment towards the sporting career.  I have achieved a great success in sports with representing sporting clubs throughout the world.

    Even in Australia I enjoy support from the local Indian community which can be really benefit (sic) during and after the finish of my education.  I provided some supporting documents from sports clubs from Australia and New Zealand.  I shall appreciate your kind consideration and request you to give me a chance in completing my education in Australia.

15. The applicant provided the following documents to the Tribunal:

    A letter of support from the Secretary of the Young Kabaddi Club Victoria Inc who commends the applicant as a “renowned kabaddi player”; and

    An ‘Appreciation Letter’ from the Supreme Sikh Society of NZ in relation to the time the applicant gave to the New Zealand Sikh community as a kabaddi player.

16. The applicant confirmed at the hearing that he applied for the visa in order to undertake a Certificate III and Certificate IV in ELICOS.  He said he will finish the Certificate III on 8 May and the Certificate IV on 27 November 2016.  He said he is currently studying.

17. Invited to explain any exceptional reasons why he should be granted a student visa the applicant said if he had to go back (to India) and apply from there he could save time and start studying here.  He said he is a professional kabaddi player and some local teams have asked him to stay and coach but because his English is very weak he thought he could stay and improve his English ad serve the community as well.  He said he just wants to study and finish his ELICOS course and thought he would save time by applying for it from here.  Once he finishes his study he will go back.  He emphasised he is halfway through his study.

18. 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.

19. 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…

20. 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.

21. The Tribunal does not accept that the mere fact that a person wants to study in Australia, regardless of any proposed study or whether they have commenced their study and paid fees, or whether it is cheaper and/or more expeditious to apply for a student visa onshore amounts to exceptional reasons for the grant of the visa.

22. Nor does the Tribunal accept that the fact that the applicant thought it would save time to apply onshore or that he has been asked to help coach local kabaddi teams but needed to improve his English and/or that he enjoys support from the local Indian community and this can really benefit them or the high quality of education in Australia or that he is a law abiding person and respects the laws and values of Australia  are sufficient, either individually or cumulatively, to establish exceptional reasons for the grant of the visa.

23. After considering all of the evidence before it, the Tribunal is not satisfied that any of the reasons advanced by the applicant either individually or cumulatively establishes exceptional reasons for the grant of the visa.

24. 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 570 visa.

    Conclusion

25. As the Tribunal has found that the applicant does not satisfy cl.570.227, 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.

    DECISION

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

    Karen Synon
    Member