1601211 (Migration)

[2016] AATA 3596

1601211 (Migration) [2016] AATA 3596 (17 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs VIJAYTA RAILOWAL
Mr RISHU RAILOWAL

CASE NUMBER:  1601211

DIBP REFERENCE(S):  BCC2015/3813779

MEMBER:Karen Synon

DATE:17 March 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 17 March 2016 at 8:45am

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 29 January 2016 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 applicant applied for the visa on 10 December 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 applicants applied for review of the primary decision on 3 February 2016 and provided a copy of the department’s decision.

4. On 16 February 2016 the Tribunal invited the applicants to appear before it to give evidence and present arguments on 8 March 2016.  On 19 February the applicants asked that the hearing be postponed on the basis that she was overseas visiting her sick grandmother-in-law.  Attached to the applicant’s correspondence was a travel itinerary confirming the applicants departed Australia on 15 February 2016 and would return on 11 March 2016.  This request for a hearing postponement was granted and the hearing was rescheduled to 15 March 2016.  The applicants were advised that should their return to Australia be delayed that the hearing would proceed via telephone given the issue on review is a relatively short, straight forward matter.

5. No substantive submissions or documents were provided to the Tribunal.

6. The applicants appeared before the Tribunal on 15 March 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

10. 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 Dependent Temporary Graduate Skilled Subclass VC 485 visa.  This is confirmed by both the applicant’s oral evidence and the department’s movement records which record that the applicant was granted a Dependent Temporary Graduate Skilled Subclass VC 485 visa on 28 August 2014 and this remained valid until 10 December 2015.

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

12. 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 572 visa.  The Tribunal finds that the applicant must satisfy the requirements of cl.570.227(B) as she was the holder of a Temporary Graduate Skilled Subclass VC 485 dependent visa when she applied for the student visa which is the subject of this review.

13. The department wrote to the applicant on 17 December 2015 relevantly advising that because is “an Assessment Level 3 applicant, [she] are not able to be granted an initial student visa in Australia unless exceptional reasons exist for the grant of the visa”.  The applicant was invited to provide a statement explaining her exceptional reasons for the grant of an initial student visa in Australia and any supporting evidence.

14. In response on 11 January 2016 the applicant emailed the department thus:

    Since you have email (sic) me regarding my visa, that I am not eligible to apply for a 572 visa subclass from Melbourne, I was in a state of shock as I was not aware of this rule at all, even the school who issued me the COE didn’t notify me of this information.  Since you have mentioned that my country passport will come under assessment level 2 if, I apply for only diploma/adv diploma level course, I have spoken with my college and they advised may be if I have bachelor’s degree COE then my assessment level will be level 1.

    Can you please guide me if it is ok for you if, I can attain CoE for bachelor’s degree now as well, so that after completing diploma and advanced diploma I can start the bachelors degree, I have also managed to speak and negotiate with the college that if I complete my diploma and adv diploma and I will get full credits for the study which I am enrolled in now towards attaining the bachelors degree. So this will save me time and I will (sic) then can aim for Bachelors degree from Australia, which will be extra benefit for me and my career with an international degree.

    Can you please allow me a chance to provide you with additional information for the process.  I have already paid fees, course or have already started going to school.  Your decision can bring many hardship to my life, as I will not be able to attain the qualification I want.  I am very good at studies and very hard-working person.  Second please request you to look into this case.  If I would have known the rules before I would have applied the visa accordingly, but unfortunately, the information is not available on immigration website as well or maybe I could not find it.

15. The applicant confirmed at the hearing that she applied for the visa in order to undertake a Diploma of Management and an Advanced Diploma of Management.  Invited to provide exceptional reasons for the grant of the visa the applicant said that in India she was working as a travel agency manager (and is also working in this occupation in Australia) and when she came here she realised she should study to open her own business.  She said Australia’s education is renowned and will help her to open her own business in the future.  When she went to the Institute she intended to apply for a Masters but was told to first enrol in a diploma.

16. The Tribunal noted that as she had just been in India it found it difficult to see why she could not have applied for the visa offshore.  She responded that they went back to India to see her sick grandmother-in-law, it was a very short time span, they were very busy and she had already applied for the visa in Australia.  The Tribunal again asked the applicant if she could advance any exceptional reasons for why she should be granted a student visa onshore.  She responded [she applied] because she was here in Australia and was not told by anyone that she could not apply.  She said she is a genuine person and has 4 to 5 years’ experience in a travel management company and now wants to do a Masters to open her own business.

17. The second named applicant gave evidence saying that the applicant came on his spouse visa and when she started work as a travel agency manager she realised she needed more study.  He said they did not take consultation from any lawyers or agents.  He confirmed his 485 visa ended on 10 December 2015.  The Tribunal noted this was the same day the applicant applied for the student visa.  The second named applicant said he could have applied for a student visa but his wife wanted to 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 or amounts to exceptional reasons for the grant of the visa.

22. Nor does the Tribunal accept that the fact that the applicant wanted to study more and do a Masters to open her own business, or that she was not told she needed to demonstrate exceptional reasons when or before she applied or that she applied for the visa without any migration advice, or that the applicant is a genuine person and has experience in the travel industry 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 572 visa.

Conclusion

1. 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.

2. The second named applicant is the spouse of the first named applicant or the 'primary person'.  As the Tribunal has found that the first named applicant does not meet cl.572.227 the first named applicant does not satisfy the criteria in Subdivision 572.22.  Therefore the second named applicant does not satisfy cl.572.322.

   DECISION

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

   Karen Synon
   Member