1602068 (Migration)

[2016] AATA 4124

1602068 (Migration) [2016] AATA 4124 (19 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs MENITA MUNGROO
Mrs RAJIV MUNGROO

CASE NUMBER:  1602068

DIBP REFERENCE(S):  BCC2015/3769885

MEMBER:Karen Synon

DATE:19 July 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 19 July 2016 at 1:30pm

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 3 February 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 applicants applied for the visa on 7 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 applicant applied for review of the primary decision on 20 February 2016.  During the course of the review a copy of the department’s decision was provided to the Tribunal.

4. The applicants appeared before the Tribunal on 19 July 2016 to give evidence and present arguments.  The Tribunal also took evidence form the second named applicant.  It was also submitted that a friend, Kaviraj Keeroo, could give witness evidence by telephone about the poor/wrong advice he received from the applicant’s former migration agent.  After discussion with the applicant she agreed that Kaviraj Keeroo’s evidence would not be relevant to the issue on review and therefore it was not taken.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.  This is because, according to the visa application, the applicant applied for the student visa to undertake an Advanced Diploma of Business.  There is no evidence before the Tribunal that the applicant meets the criteria for any other subclass visa within the Class TU.

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

8. 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 Temporary Work (Skilled) (subclass 457) 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 7 August 2015 as the holder of a UC-457S visa that was granted on 16 July 2015 and remained valid until 12 May 2016.

9. The visa application records and the applicant confirmed at the hearing, that she is a citizen of Mauritius and holds an Mauritian passport.

10. On the basis of the information relating to the Subclass of visa the applicant is seeking, as the holder of a passport of Mauritius 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.572.227(B) as she was the holder of a Temporary Work (Skilled) (subclass 457) visa when she applied for the student visa which is the subject of this review.

11. The applicant confirmed at the hearing that she applied for the visa in order to undertake an Advanced Diploma of Business.  She is not currently studying but did commence this course and completed one semester.

12. The Tribunal invited the applicant to explain any exceptional reasons why she should be granted a student visa.  She responded that she was new to the country and when she arrived here she realised her qualifications were not recognised.  She wants to study here and in the future get a job in Australia and they might stay permanently.  She said her husband, in the future, will apply for another visa and get PR and she would like to study here and get a job.  She is interested in later also doing a university course.  The applicant said she was already here and this is why she applied for the visa from Australia.  If she had known her qualifications would not be recognised here, she would have applied offshore.  She sought advice from an agent and if she knew she would be refused she would have applied offshore.  She repeated she wants to study here.

13. The second named applicant gave evidence that they went to a migration agent for advice on the student visa and, after checking all their documents, he advised “she would get it”.  He did not mention that she would not get the visa onshore.  He said they had lots of expenses including the migration agent’s fees and have no receipt or contract from him.  This agent told them to apply to the MRT and said everything would be fine.  If this agent had suggested his wife not apply they would not have done so.  They engaged a migration agent and listened to his advice.  They have now lodged a complaint about their former migration agent.

14. 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.

15. 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…

16. 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.

17. 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 or whether a migration agent provided incorrect advice amounts to exceptional reasons for the grant of the visa.

18. Nor does the Tribunal accept that the fact that the applicant wants to study in Australia because her qualifications from Mauritius are not recognised here or that she was new to the country and in future wants to find a job here and might stay permanently are sufficient, either individually or cumulatively with the other reasons advanced, to establish exceptional reasons for the grant of the visa.

19. While the Tribunal has some sympathy for the applicants’ situation if they were advised incorrectly as claimed, as explained to them, it nonetheless is required to apply the Regulations and legal authority in making its decision.

20. 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 or those advanced by her husband about the incorrect information they received from their former migration agent and how many expenses they have incurred, establishes exceptional reasons for the grant of the visa.

21. 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

22. 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.

23. 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

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

    Karen Synon
    Member