1602326 (Migration)

[2016] AATA 4680

1602326 (Migration) [2016] AATA 4680 (24 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Martha Cecilia Arias Garces
Mr Humberto Arbelaez Alvarez

CASE NUMBER:  1602326

DIBP REFERENCE(S):  clf2016/5088

MEMBER:Penelope Hunter

DATE:24 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 24 November 2016 at 2:39pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 12 February 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The primary applicant applied to the Department of Immigration for the visas on 22 January 2016, in order to undertake General English (Beginner to Advanced) with course dated from 11 January 2016 to 26 June 2016, and a Certificate IV in Business with course dated from 12 August 2016 to 10 November 2016.

3. In refusing to grant the visa the delegate found that the applicant did not satisfy the requirements of cl 571.227 of Schedule 2 to the Regulations. This is because when applying for the visa the applicants were not able to establish exceptional reasons for the grant of the student visa.

4. The applicants applied for a review of that decision by this Tribunal on 24 February 2016, and annexed a copy of decision of the delegate to their application.

5. The applicants appeared before the Tribunal on 23 November 2016 to give evidence and present arguments. Only the primary applicant gave evidence in relation to the application. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Ms Martha Cecilia Arias Graces is the primary applicant. Her husband, Mr Humberto Arbelaez Alvarez, is a secondary applicant.

9. Having regard to the primary applicant’s proposed course of study, the relevant subclass of visa in this application is subclass 572.

10. The primary applicant arrived in Australia on 7 February 2016 as the holder of a FA 600 visa.

11. In her application, the primary applicant stated that her course of study was important to progress her personal and professional life. Her daughter had married an Australian and intended to live in Australia. The primary applicant wished to study English in Australia so she could communicate with her son-in-law and his family and maintain a close family relationship. To study in Australia would also allow her the opportunity to understand Australian culture. She also claimed that English was necessary for her employment prospects and qualifications in Business would strengthen her career.  Her daughter proposed to support her financially for the duration of her study.  

12. Prior to the hearing the Tribunal received from the agent for the applicants’ detailed submissions. These reiterated the history outlined above, and provided further documents in support of the submissions already made. The agent submitted that the applicants intended to stay in Australia temporarily and that their financial status was good. It was claimed that the visa would improve the English and Business skills required for the improved operation of the primary applicant’s business and career in Colombia as an Event Planner/ Decorator. It was also submitted that the daughter of the applicant had married an Australian, who only speaks English, and they plan to have children who will live in Australia and speak English. The primary applicant intended to learn English to communicate with them effectively.  Both applicants had also complied with the conditions that had been attached with their Visitor visa.

    Tribunal hearing

13. The Tribunal asked the primary applicant what were her exceptional reasons for the grant of the visa. She advised that she wanted to study English as she believed that it would help with her business and open doors.

14. When asked why she could not study English in Colombia. The primary applicant said that she had thought about that doing a course for a long time and her daughter suggested that she do it while in Australia, as it would open doors for her, that a certificate would be of beneficial to her business in Colombia, and in Australia her daughter would support her. 

15. The Tribunal put to the applicant that if she had of continued her enrolment she would have already completed her study. The primary applicant advised that she thought because she had not been granted the visa she could not do any study. The agent for the applicants submitted that it was a condition of the Visitor visa held by the applicants that they not engage in a course of study for more than 3 months and it was believed that she still carried over those conditions. It was considered that the primary applicant would be breaching the conditions of her Visitor visa. The Tribunal put to the primary applicant that she would not be violating any rules by continuing to study.

16. The primary applicant was asked when she last attended study and she advised she had studied for about a month and then withdrawn when her visa was refused.

17. The Tribunal put to the primary applicant that she had claimed that learning English was important for her relationship with her son-in-law and his relatives; however her circumstances are that she is not taking genuine steps to learn English and assist that objective. It was put to the primary applicant that open to the Tribunal to conclude that learning English was not as important as she claims. The primary applicant claimed that it was very important and that she had been practicing with her son-in-law at home and using Duo lingo.

18. The applicant was asked whether she considered that there was any benefit to Australia, such as improving bilateral relations or providing significant economic benefit to Australia that would arise from the grant of a Student visa to her, she said that if the opportunity arose for her to conduct her business in Australia that would be good.

19. It was put to the applicant that the Student visa was a temporary visa and she was asked whether she and her husband intended to return to Colombia once she completed her studies. She responded that she did as she had a son, family and house in Colombia.

20. The Tribunal discussed her employment circumstances. The primary applicant worked as a decorator for events and parties in Colombia. She was self-employed, and no one was looking after the business in her absence. She had no formal qualifications to operate this business, and she claimed that this was a reason why it was important for her to study in Australia. The primary applicant did not accept that qualifications in Colombia would be more relevant to her business and claimed that there were very few opportunities to undertake relevant study in Colombia. When asked what qualifications would do for her business the primary applicant claimed that she would have studies and be able to speak English. A certificate from Australia would open doors, provide the opportunity to link in with certain companies and grow her business.

21. The primary applicant submitted that it was also important for her to spend time with her daughter, and studying in Australia would allow her to do this. In the future she intended to return to Australia and English would continue to be of assistance. She wanted her grandchildren to maintain a link with Colombia as that would be where their roots are and if she has a well-established business she was able to support them when they came to visit her in Colombia in the future. The primary applicant confirmed that she did not yet have any grandchildren.   

22. The agent for the applicant submitted that there had been clear indications in relation to the primary applicant’s business that there was the opportunity for bilateral relations with other companies within Australia in terms of event planning. In Australia there was the Colombian Consulate and many Australian companies had investment in Colombia, the agent had received business in this area so it was claimed that there was also the opportunity for the primary applicant to tap into this business and expand her business in Colombia and travel back and forth to Australia. These were potential prospects, and when questioned by the Tribunal it was conceded that the primary applicant did not already have such business connections. Additionally there was no evidence to be submitted to the Tribunal that any particular business had requested the qualifications that the primary applicant was seeking in order to provide her with work. Finally there was no evidence available that the primary applicant had missed out on business opportunities to date due to her lack of qualifications.

23. When the Tribunal asked why the primary applicant what was so exceptional that she should not travel offshore and apply for the Student visa, the applicant said she had applied for the Student visa because her existing visa had a limitation on study for 3 months, but if she needed to go back to Colombia and apply that was something that she would do.  

    REASONS AND FINDINGS

24. The applicants are the holders of passport from Colombia. The primary applicant has applied for a Student (Temporary) (Class TU) (Subclass 572) visa on 20 January 2016.

25. The primary applicant was the holder of a FA 600 visa, at the time she applied for the Student visa.

26. The criteria for the grant of a Subclass 572 visa are set in in Part 572 of Schedule 2 of the Regulations. Relevantly to this case they include cl. 572.227. Broadly speaking, for visa applications made in Australia, it requires that if a person made an application for a Student (Temporary) (Class TU) Subclass 572 visa in Australia, and the applicable assessment level is an assessment level other than assessment level 1, and at the time of the application the applicant was the holder of certain specified visas, then the applicant must establish ‘exceptional reasons’ for the grant of the visa.

27. The relevant assessment level was assessment level 3.

28. The issue in this case is whether or not the primary applicant has established exceptional reasons for the grant of the visa, and this is a question of fat for the decision maker.

29. ‘Exceptional reasons’ in this context are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an application who is not subject to the restriction in the criteria. A visa should not be granted a visa unless reasons could be positively identified which would justify the grant, and the reasons must be capable of being described as ‘exceptional’. The term ‘exceptional reason’ is not defined in the legislation. The Tribunal notes the judgment of Kim v MIAC [2008] FCMA 1577, where the court noted that 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.’[1]

    [1] KIM v MIAC [2008] FCMA 1577 (Smith FM, 27 November 2008) at [30], undisturbed on appeal in KIM v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

30. The Department provides guidance to its officers through the Procedures Advice Manual (PAM). These guidelines are not binding on the Tribunal but regard may be had to them when they’re not in conflict with the legislation.

31. Under PAM3 ‘exception reasons’ may include but are not limited to situations where:

    ·there is a ‘benefit to Australia’ ( for example where the ‘visa grant would improve bilateral relations or provide significant economic benefit to Australia’)

    ·the applicant is a dependent of a departing temporary resident and has been studying in Australia in Australia for at least one year and wishes to complete his or her current course or undertake further studies.

    ·the applicant held a Class TU visa in Australia when they were granted a specified temporary visa and now wishes to undertake further study or continue their course of study.

    ·The applicant previously held a student visa and now holds a Subclass 676 (visitor) visa granted under s.351 (Ministerial Intervention).

32. The Tribunal took into consideration the evidence of the primary applicant and submissions made on her behalf as reasons advanced to establish exceptional reasons in this case.

33. In considering the current matter, the Tribunal cannot find that the primary applicant has established exceptional circumstances. The Tribunal notes that the Bridging Visa granted to the primary applicant after she lodged her application for the visa does not contain condition 8201 restrictions on study. However it is accepted that she received advice that she could no longer study when her visa was refused and for this reason withdrew from her course. It is accepted that she has provided sufficient explanation for why she is no longer studying.

34. The Tribunal has considered the reasons provided by the primary applicant and her agent as outlined above both singularly and cumulatively and the Tribunal finds that they do not reach the level that could be considered exceptional. As the onus is on the applicant to establish exceptional reason, the Tribunal is unable to make a decision in the applicant’s favour.

35. The primary applicant has not demonstrated that she could not learn English in Colombia, or reasons why she could not apply offshore to return to learn English in Australia. 

36. The Tribunal is not persuaded by the mere assertion of the primary applicant that it was not possible for her to undertake any study relevant to her business in Colombia.

37. With respect to the claim that the course would be of strengthening her business and allowing for improvement of bilateral relations the Tribunal considers this claim as speculative. Other than “linking in” and “open doors to grow” her business, the primary applicant has not present actual evidence of such opportunities that could be pursued with the grant of the visa.

38. She has not demonstrated that there is a benefit to Australia that would accompany the grant to her of a Student visa.

39. In all the circumstances, the Tribunal finds that the primary applicant has not established exceptional reason for the grant of a Subclass 572 visa. She therefore does not satisfy the criterion in cl.572.227 of Schedule 2 of the Regulations. Therefore the decision to refuse her Subclass 572 visa must be affirmed.

    Conclusion

40. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the primary applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the primary applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the primary applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

41. As the Tribunal has found that the primary applicant in this case has not satisfied the requirements subdivision 572.22, it follows that the secondary applicant, who has applied as a member of the primary applicant’s family unit, cannot be a visa under cl 572.314.   

    DECISION

42. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Penelope Hunter
    Member