1608288 (Migration)

[2016] AATA 4302

1608288 (Migration) [2016] AATA 4302 (12 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rajinder KAUR

CASE NUMBER:  1608288

DIBP REFERENCE(S):  CLF2015/12682

MEMBER:Gina Towney

DATE:12 August 2016

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal remits the matter to the Department for further consideration with a finding that the applicant satisfies cl. 572.227.

Statement made on 12 August 2016 at 3:24pm

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 8 May 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 visa applicant applied for the visa on 2 March 2015. The courses listed were as follows: an English Language course, with course dates from 2 March 2015 until 8 May 2015; a Certificate III in Commercial Cookery, with course dates from 20 July 2015 until 15 August 2016; and a Diploma of Hospitality, with course dates from 16 August 2016 until 30 September 2017.

3. In her application, in response to a question 33, regarding a brief statement setting out the reasons for undertaking the intended course of study in Australia the applicant wrote that she wanted to improve language skills, and, also learn business management techniques and skills (Folio 48).

4. The applicant also provided a submission in support of her application dated 20 April 2015. The submission recorded the following (in summary):

   ·The applicant has experienced tragic circumstances since entering Australia, including being twice divorced.  The applicant was divorced by her first husband in 2007.  She then applied for a 485 Visa (Temporary Graduate) which was refused;

   ·The applicant then met her second husband in January 2012, and they later married.  The applicant and her second husband were subsequently granted 457 Visas (Temporary Work – Skilled). Later the applicant’s husband returned to India and married a second woman without informing the applicant, and without obtaining a divorce;

   ·At this point the applicant found herself 39 years of age, twice divorced, and living in a foreign country. The applicant became depressed. If she returned to India she would face a terrible time, as being a twice divorced woman is difficult in India, and she would face social isolation and unwanted male attention. In addition the applicant is from a rural area where everyone in the community knows each other and taunting of males is very common;

   ·The applicant wants to complete her studies in Australia and be able to return to Metropolitan city in India, which is very different from rural areas, and spend the rest of her life single and supporting herself.  [The applicant submitted documents in support of her application including her divorce documents, and a copy of a complaint made to the authorities in India.]

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy clause 572.227, which requires that exceptional reasons be established for the grant of the Visa.

6. The applicant appealed against this decision and the Tribunal, (differently constituted), affirmed the decision under review on 5 March 2016. The applicant appealed against the decision to the Federal Circuit Court, and the matter was ‘remitted by consent’ on 25 May 2016.

7. The applicant appeared before the Tribunal on 12 August 2016 to give evidence and present arguments.  The applicant was represented in relation to the review by her registered migration agent, Mr Singh Madon.

8. Prior to the hearing the agent made detailed written submissions, which reiterated the history outlined above, and provided further documents in support of the submissions already made. During the hearing the applicant and agent both reiterated the submissions outlined above. 

9. During the hearing the applicant also gave evidence that, although her mother was disappointed at the life choices that she had made, and would not allow the applicant to return to the family home at the present time, she financially supported the applicant through money passed via the sister. The applicant also said that her mother obtained her income through the ownership of farming land, and earned approximately AU$30,000 per annum.

10. The applicant also said that she was emotionally supported by her sister, and her sister obtained money from their mother to pass on to her.

11. When the Tribunal asked why the applicant would not be able to travel offshore and apply for a student Visa, the agent stated that the applicant would not satisfy the current genuine temporary entry criteria. In doing so the agent referred to the applicant’s age, her previous refusals for other visas, but her history in Australia.

12. The Tribunal raised that there appeared to be some internal contradiction in the applicant’s evidence, in that she claimed to be financially supported by her mother, who herself was financially independent, but claimed that she could not return to India in order to apply for a Visa or continue her studies in her home country. The agent reiterated that he believed that the applicant would not satisfy the current genuine temporary entry criteria if she applied from overseas, and the applicant stated that education from Australia was sought after as opposed to education from within India.

13. Despite all the issues raised, the applicant reiterated that she would return to India once she completed her current enrolment of studies, she would be able to obtain employment once she obtained a Diploma, and live independently in a metropolitan area.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant satisfies clause 572.227.  Clause 572.227 records following:

    (a)      the application was made in Australia; and

    (b)      subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

    (c)      at the time of application, the applicant met the requirements of clause 572.211:

    …

    (iii)      as the holder of a visa of one of the following subclasses:

    …

    the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

16. As per the legal commentary, an applicant subject to this clause must establish that there are ‘exceptional reasons for the grant of visa’, and that this is a question of fact for the decision-maker.  Relevant excerpts from the commentary are outlined below:

    ‘Exceptional reasons’ in the context of cl.57x.227 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 restriction in the criterion, nor by deciding whether he or she departs from the ‘normal’ characteristics of the group who is subject to the restriction. 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’. 

    Beyond such reasons being capable of being described as ‘exceptional’ in ‘ordinary parlance’, there is no prescriptive definition of the term.  Similar to the phrase ‘exceptional circumstances’ in the context of visa cancellation, the emphasis of ‘exceptional reasons’ is on the term ‘exceptional’, and the term is one which may have a wide operation and no definition which limits its application should be adopted unless the limitation appears from the words of the relevant statutory provision. The decision-maker has ‘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’. Exceptional reasons may be demonstrated by personal circumstances.  

17. In the current matter, the Tribunal acknowledges that there are arguments both for and against granting the applicant the Visa. Against this, the applicant is one of many women in both Australia and India who have experienced divorce, and/or poor treatment at the hands of others; the applicant’s courses only commenced at the time of application (that is, she was not continuing previous education), and the applicant is receiving financial support from her mother and emotional support from her sister.

18. In the applicant’s favour, the applicant is in the less common situation where she is twice divorced, the applicant is making good headway in her current studies, the applicant may have difficulty re-entered Indian society due to her marital status, the applicant’s family will be under additional emotional and financial strain due to the death of both her father and her brother, the applicant’s previous education provider closed part way through the applicant’s previous course (hindering her previous attempt to obtain education), the applicant has had repeated contact with the Australian legal system through the divorce proceedings and appeal related to the current application, and the applicant is a woman nearing middle age.

19. Having considered the factors overall, including the applicant’s evidence that she wanted to complete her current studies and then return to India and live independently, the Tribunal has made a finding that the applicant’s particular circumstances as a whole satisfy the exceptional circumstances criteria.  The Tribunal has not conducted a review in relation to other matters, such as genuine temporary entrant criteria.

    DECISION

20. The Tribunal remits the matter to the Department for further consideration with a finding that the applicant satisfies cl. 572.227.

    Gina Towney
    Member