1602694 (Migration)

[2016] AATA 4623

1602694 (Migration) [2016] AATA 4623 (31 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HAO LI

CASE NUMBER:  1602694

DIBP REFERENCE(S):  CLF2015/73245

MEMBER:Penelope Hunter

DATE:31 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2016 at 4:34pm

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 12 February 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 November 2015 in order to undertake Junior Secondary Studies, year 10 with course dates commencing on 27 January 2016 and concluding on 16 December 2016, and years 11 and 12 with course dates commencing on 30 January 20017 and concluding on 21 December 2018 at Strathfield South High School.

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 applicant was not able to establish exceptional reasons for the grant of the student visa.

4. The applicant applied for a review of that decision by this Tribunal on 2 March 2016, and annexed a copy of decision of the delegate to his application.

5. The applicant appeared before the Tribunal on 5 October 2016 to give evidence and present arguments. The applicant was supported by Ms Xuan Zuo. Ms Zuo did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Having regard to the applicant’s proposed course of study, the relevant subclass of visa in this application is subclass 571.

8. The applicant arrived in Australia on 1 October 2013 as the dependant of his father and the holder of a UC – 457 visa.

9. In his application, the applicant stated that he was developing an interest in computer animation and after completing high school education he wanted to study in the area of computers. He had made some friends at his school and would like to complete his high school education in Australia.

10. In submissions to the Department dated 5 January 2016, the agents of the applicant set out the following (in summary):

    ·The school term in China would have started and the applicant could not return to China and resume his studies. He also would not be able to make an entry into any Chinese University.

    ·If the applicant was to return to China and then apply for a Student visa in Australia, he would not be able to continue his education smoothly.

    ·His parents would support him financially.

    Tribunal hearing

11. The Tribunal asked the applicant what were his exceptional reasons for the grant of the visa and he responded that he had already gotten used to life in Australia and if he was asked to go back to China he could not get used to that life. He had not returned to China since he arrived in Australia several years ago.

12. When asked why he could not go to school in China the applicant submitted, through the Mandarin interpreter, that now he had been in Australia he was forgetting Chinese and the education and teaching method was different. When asked to identify how it was different he claimed that what they are teaching in China for year 11 is different to Australia. When asked how it is different he responded only that the knowledge is different.

13. The Tribunal put to the applicant that if he returned to China he would be able to return to school. He responded that he was not sure he would be able to study there. However,  he was unsure as to any reasons why he would not be able to study and he confirmed that he had studied at school in China previously. When asked to identify what has changed that would impede his study, the applicant responded that there was nothing.

14. The applicant was asked about the school year in China and the time during which it would run and whether this would impact upon him. He responded that he had been in Australia for such a long time he could not recall about the school year in China.

15. It was put to the applicant that the Student visa was a temporary visa and he was asked whether he and his family intended to return to China once he completed his studies. The applicant said that he did not have that plan. He had already become used to the life in Australia and he thought that the education was better in Australia rather than China. It was his intention to stay in Australia and keep studying. When asked whether it was the intention of his family to remain in Australia permanent he said that it was.

16. The applicant was asked whether he planned to do further study when he finished high school, and he hesitantly replied yes. When asked what he wanted to do he advised that he had not really decided, perhaps go to TAFE etc. It was put to the applicant that if he had not decided what he wanted to do in the future then it was possible that future study was something he could also do in China. He responded that he was now a long way from high school graduation so was still considering. The applicant was questioned about his claim to be interested in computer animation. He responded that he was not really sure about that and he confirmed that his interests had moved on.

17. The applicant claimed he had made friends at his school. He agreed that he could make friends at school in China and this was not really an exceptional reason.

18. The Tribunal discussed his family’s circumstances with the applicant and he advised that his father’s employer had cancelled his father’s visa and in order for him to continue to study his father had lodged the visa for him. He no longer has a home in China. His family previously rented their house.

19. The applicant was asked when he last attended school and he responded that he did not know when. The applicant was asked whether he had been consistently attending school. The applicant asked whether this meant if he went every day. The Tribunal responded in the affirmation and the applicant said that he did not. Pursuant to the provisions of s.349AA of the Act the Tribunal put to the applicant for comment that PRISM records indicated that his enrolment at Strathfield South High School had been cancelled on 11 May 2016 due to non-commencement of studies. The applicant was advised that he was required to be studying or subject to an offer of enrolment to be granted a student visa, and if he was not studying he would not be eligible for the visa. The applicant chose to respond immediately and claimed that he had attended school every day and he did not know why it was cancelled.

20. The applicant was again asked whether there was anything exceptional about him or his circumstances to entitle him to the visa and after considerable pause he responded, no. 

21. Following the hearing, on 11 October 2016, the Tribunal wrote to the applicant pursuant to the provisions of s. 359A. The applicant was advised of information recorded in PRISMS that his enrolment in Junior Secondary School (Years 7 to 10) at Strathfield South High School and prospective study in Senior Secondary (years 11 and 12) was cancelled with effect from 11 May 2016 due to non-commencement of studies. The applicant was invited to respond to the Tribunal by 25 October 2016, and provide evidence of his current study and/or enrolment.

22. On 25 October 2016, the agent for the applicant forwarded a letter to the Tribunal of Simon Paterson, principal Strathfield South High School, certifying that the applicant was a student at Strathfield South High School.

23. On 27 October 2016, the agent for the applicant forwarded a statement from the applicant in which he claimed that he had been studying at Strathfield South High School since his arrival in Australia, that his attendance was great, 96.2% and he did not know why PRISM records showed non-commencement of his studies.

    REASONS AND FINDINGS

24. The applicant is the holder of a passport from the People’s Republic of China. He has applied for a Student (Temporary) (Class TU) Schools Sector (Subclass 571) visa on 23 November 2015.

25. The issue in this case is whether or not the applicant has established exceptional reasons for the grant of the visa.

26. According to the decision under review, a copy of which the applicant has provided to the Tribunal without further comment, he was the holder of a UC-457 visa, as a dependent of his father, at the time he applied for the Student visa.

27. The criteria for the grant of a Subclass 571 visa are set in in Part 571 of Schedule 2 of the Regulations. Relevantly to this case they include cl. 571.227. Broadly speaking, for visa applications made in Australia, it requires that if a person made an application for a Student (Temporary) (Class TU) Subclass 571 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.

28. Again according to the decision under review, the relevant assessment level was assessment level 3.

29. The Tribunal has considered the following matter, 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 applicant and submissions made on his behalf as reasons advanced to establish exceptional reasons in this case.

33. In considering the current matter, the Tribunal cannot find that the applicant has established exceptional circumstances. While the Tribunal initially had some doubts that the applicant was studying it accepts the certification of enrolment that he has provided from his principal as evidence that he is studying. As to his exceptional circumstances, the applicant has set out that he has previously studied in Australia, and would like to continue to study in Australia without interruption. He further claimed to have gotten used to the Australian life and education system.

34. The applicant has not demonstrated that he would be unable to recommence his schooling if he returned to China. While accepting that there may be variations to the course curriculum, he has also not demonstrated to the Tribunal that the knowledge and method for schooling is China is so fundamentally different that he would be unable to resume his education.

35. Further the fact that he has completed several years of study in Australia is not considered as exceptional. The applicant still has several years of schooling left to complete high school. When he filed his application he had not yet commenced year 10. Although the applicant claimed he could not remember much about the Chinese education system, he has not demonstrated to the Tribunal that he would be unable to complete his final years of secondary schooling in China. He has previously studied in China and has not demonstrated that he was unable to obtain and education in that environment.

36. Although in his written submissions the applicant stated he had a genuine interest to pursue further studies in Australia, the Tribunal was not satisfied that this was reflected in his evidence. He was hesitant when asked whether he intended to study in his future, the possibility that he considered was only TAFE courses, or vocational education. He also was unsure about computer animation. While it is reasonable for a 16 year old to be uncertain about his future career path, his evidence does not demonstrate that a secondary education in Australia is essential to his future plans. Furthermore it also does not demonstrate that the consequences of not completing high school in Australia would be detrimental to his future educational or professional pathway. The Tribunal does not consider this to constitute exceptional reasons.

37. The Tribunal further considered the applicant’s evidence that he had not returned to China since his arrival in Australia, he did not intend to return in the future. On the applicant’s evidence his family have no home to return to in China and the 457 visa of his father had been cancelled by his father’s employer. The Tribunal has concerns that application was part of a strategy for the applicant and his family to continue to remain in Australia. The applicant’s evidence was that he did not intend to return to China but wished to remain in Australia permanently.

38. The Tribunal has considered the social relationships formed by the applicant at school in Australia, however he also acknowledged that he could make friends if he returned to school in China. The Tribunal does not consider this to be exceptional.

39. The applicant did not submit that there was any benefit to Australia in his being granted to the visa.

40. The Tribunal has considered the matters 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.

41. In all the circumstances, the Tribunal finds that the applicant has not established exceptional reason for the grant of a Subclass 570 visa. He therefore does not satisfy the criterion in cl.571.227 of Schedule 2 of the Regulations. Therefore the decision to refuse him a Subclass 571 visa must be affirmed.

42. For applicants in Australia who do not hold a substantive visa at the time of visa application the other subclasses within Class TU visa class have a requirement that is the same as cl.571.227. For the reasons given above, the Tribunal finds that the applicant does not meet the requirements of these subclasses.

    DECISION

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

    Penelope Hunter
    Member