ALSANJALAWI (Migration)

[2017] AATA 615

ALSANJALAWI (Migration) [2017] AATA 615 (13 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs ISTABRAQ HASAN KH. ALSANJALAWI

CASE NUMBER:  1607150

DIBP REFERENCE(S):  CLF2016/12810

MEMBER:Penelope Hunter

DATE:13 April 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 April 2017 at 10:58am

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 572 – Exceptional reasons – Held visitor visa when applied for student visa – Did not commence study of original course – Future business aspirations not exceptional circumstances

LEGISLATION

Migration Act 1958, ss 65, 359AA
Migration Regulations 1994

, Schedule 2, cl 572.227, cl 572.412

CASES
Kim v MIAC [2008] FCMA 1577

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 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 to the Department of Immigration for the visa on 23 February 2016. The applicant proposed to undertake study in an Advanced Diploma of Leadership Management with course dates from 11 April 2016 to 29 March 2019.

3. The delegate decided to refuse to grant the visa on 29 April 2016. In refusing to grant the visa the delegate found that the applicant did not satisfy the requirements of cl 572.227 of Schedule 2 to the Regulations. It was not considered that she was able to establish exceptional reasons for the grant of the Student visa.

4. The applicant applied for a review of that decision by the Tribunal on 19 May 2016, and submitted a copy of decision of the delegate to her application.

5. The applicant appeared before the Tribunal on 3 April 2017 by conference telephone from Jordan to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) 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. The applicant is the holder of a passport from Jordan and set out in her application that she has previously held a Visitor visa that was issued on 5 July 2015. She has not previously studied in Australia and she has never been employed.

8. In submissions to the Department in support of her application the applicant stated that she did not want to waste her time and apply from Jordan as this process would take 3 months and she was already here and wanted to choose the first available intake. Additionally she was pregnant and while her initial plan was to come to Australia for a visit, on arriving she found that the country had countless opportunities that she could not walk away from and she would like to undergo studies here as it would benefit significantly her future career plans. The qualification that she obtains in Australia will allow her to provide a better life for her family. She would not halt her studies in any way due to her pregnancy. She also submitted that in Jordan the courses were not as prestigious or renowned internationally. Her long term ambition is to open her own Biotech Company and the running of the business would require leadership, managerial and entrepreneurial skills.

9. With her application to the Tribunal the applicant provided a copy of the decision of the delegate. She did not provide any further documents to support her application prior to the Tribunal hearing.

10. On 8 March 2017, the Tribunal wrote to the representative for the applicant and invited her to attend a hearing on 3 April 2017 to give evidence and present arguments.

11. On 17 March 2017, the Tribunal received a request on behalf of the applicant to appear by phone as she was overseas and would not be returning to Australia until 17 June 2017. 

12. On 30 March 2017, the Tribunal wrote to the applicant via her authorised representative and confirmed that the applicant could appear by phone at the hearing and informed the applicant that in accordance with cl. 572.412 of Schedule 2 to the Regulations that it was a criteria for the grant of the visa that the applicant be in Australia at the time of grant. The applicant was invited to contact the Tribunal if she had any further questions.

    Tribunal Hearing

13. The applicant told the Tribunal that she was not currently studying and that she had not commenced her course. She claimed that she was not granted a Confirmation of Enrolment as she did not have a Student visa and that she was told by her institution that she could not study. The Tribunal noted that her course was to have started prior to the decision of the delegate.

14. Pursuant to the provisions of s.359AA the Tribunal put to the applicant for comment information contained in Provider Registration and International Student Management System records (PRISM) which recorded that the applicant had two current enrolments in a Certificate IV in Business Administration with course dates from 16 January 2017 to 14 July 2017 and a Certificate IV in Project Management Practice with course dates from 24 September 2018 to 10 May 2019. The applicant was advised that the information was important because it demonstrated that she could obtain a Confirmation of Enrolment. The applicant chose to respond immediately and claimed that she had not studied and referred to her agent.

15. The applicant was asked by the Tribunal what were the exceptional reasons in her circumstances for the grant of the visa. In response she claimed that when she was in Australia that she found that there was a wide range of courses available and that she wished to study to benefit herself and her family. She wanted to improve her education and her language and had wanted to study. The applicant claimed that she could have remained in Australia as a dependant on her husband’s visa but that she wanted to have her own studies.

16. Other reasons were the time that the applicant would save by not having to return to Jordan as she wished to start her studies straight away. Also the applicant said that she was about seven months pregnant when she applied for her visa and she did not want to return to Jordan at her advanced stage of pregnancy. The applicant advised that her son was born on 7 June 2016. The Tribunal asked the applicant whether part of her reasons for applying for the visa were due to her pregnancy rather than a genuine desire to study. The applicant claimed that she wanted to study and improve her life situation.

17. The Tribunal asked the applicant why she could not have returned to Jordan and applied for her visa offshore. She responded that she did not want to waste time. The applicant also claimed that with her experience and her ambition if she could study she could do good things for Australia and Jordan. Although she did not provide any specific details.

18. Following the hearing the applicant submitted to the Tribunal email correspondence in support of her application. The email refers to cancelling a Certificate of Enrolment in C-VI Business Administration which was going to start from 16 January 2017. The email was from Hannay Admin and is dated 5 January 2017. It is addressed to Sohayb abu Tapajeh and Puna Bhandhari.  

    REASONS AND FINDINGS

19. The primary applicant is the holder of a passport from Jordan and was the holder of a Visitor (FA- 600) visa, at the time she applied for the Student visa.

20. The relevant subclass of visa is Subclass 572. 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. This requires that where the visa application was made in Australia and the applicable assessment level is an assessment level other than assessment level 1, and if the applicant was not the holder of a certain specified visas, then the applicant must establish ‘exceptional reasons’ for the grant of the visa.

21. 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 fact for the decision maker.

22. ‘Exceptional reasons’ in this context are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an application that 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).

23. 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.

24. 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).

25. The Tribunal has taken into consideration the evidence and submissions of the applicant as reasons advanced to establish exceptional reasons in this case. Upon considering all this material, the Tribunal is not satisfied on the evidence before it that the applicant has established that there are exceptional reasons.

26. The Tribunal has had regard to the submissions of the applicant that she did not wish to waste time by applying offshore. It is accepted that this would take additional time and that the applicant would incur additional expense if she followed this path, however these circumstances would be the same for any other applicant in the situation of the applicant. It is not considered to be an exceptional reason.

27. Furthermore, the applicant has not engaged in her study. She has claimed that her institution cancelled her Certificate of Enrolment, and the Tribunal has had regard to the email submitted by the applicant as confirmation of this claim. The email is not addressed to the applicant, it refers to a later Certificate IV course in Business Administration, commencing 16 January 2017. Not the Advanced Diploma of Leadership Management which commenced on 11 April 2016 and was the subject of the applicant’s visa application. The Tribunal is not satisfied that the applicant has satisfactorily explained why she did not commence study of her original course.

28. The Tribunal was also not satisfied that the opportunity for the applicant to improve her life situation or her potential to do good things for Australia and Jordan, without specific details as to how this would occur, could be regarded as an exceptional reason. Although the applicant has set out that she plans to open her own Biotech Business in the future, she has also set out that she has never been employed and the Tribunal is not satisfied that it can attribute much weight to the applicant’s future business aspirations and consider them to be an exceptional reason.

29. The Tribunal has had regard to the applicant’s circumstances at the time of her application. She applied for the visa on 23 February 2016, her son was born on 7 June 2016. It is accepted that she was 5 – 6 months pregnant at the time of her application. However she has not claimed that her pregnancy was high risk or prevented her returning to Jordan. There is also no medical evidence before the Tribunal to demonstrate this. The applicant has claimed in her submissions that her pregnancy would not impact on her proposed study. The Tribunal is therefore not able to find that this constituted an exceptional reason.

30. 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 reasons, the Tribunal is unable to make a decision in the applicant’s favour.

31. In all the circumstances, the Tribunal finds that the 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 a Subclass 572 visa must be affirmed.

32. 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.572.227. For the reasons given above, the Tribunal finds that the applicant does not meet the requirements of these subclasses.

    DECISION

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

    Penelope Hunter
    Member