Caldera (Migration)

[2018] AATA 5078

Caldera (Migration) [2018] AATA 5078 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hollupathirage Anjana Deshan Caldera

CASE NUMBER:  1720905

HOME AFFAIRS REFERENCE(S):           BCC2017/2569085

MEMBER:Nicole Burns

DATE:3 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 03 December 2018 at 10:39am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – application for visa made less than 3 years after the applicant’s departure from Australia – risk factors – departed on bridging visas – previous unlawful status – 3 year exclusion period – no compassionate or compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 4014(1)(a), 600.213(1), Public Interest Criterion 4014

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 24 August 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 July 2017. The delegate refused to grant the visa on the 24 August 2017 on the basis that the application for the visa was made less than 3 years after the applicant’s departure from Australia and (under certain risk factors specified) because she was not satisfied that there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen which justify the granting of the visa. 

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly, they include cl.600.213(1) which requires that the visa applicant satisfy a number of public interest criteria including Public Interest Criterion 4014 (PIC 4014).

4. The review applicant appeared before the Tribunal on 21 November 2018 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets cl.600.213 which requires that he satisfies Public Interest Criterion 4014 (among other things).   In general terms, PIC 4014 cannot be satisfied by a visa applicant who has departed the Australia as an unlawful non citizen or as the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa which was granted more than 28 days after the applicant last held a substantive visa, unless the Minister is satisfied that, in the particular case:

   §compelling circumstances that affect the interests of Australia; or

   §compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years of the departure.

7. In the applicant’s case Departmental records (as discussed at hearing and set out in the representative’s written submission to the Tribunal) indicate that he first came to Australia on 14 July 2014 as the holder of a student (Subclass 573) visa which ceased on 30 August 2016.  He departed Australia on 18 December 2016 as the holder of a Bridging visa E granted that same day and returned to Australia on 15 January 2016 as the holder of a student (Subclass 500) visa, granted on 22 December 2016 and valid until 30 July 2017. 

8. The visa applicant's Subclass 600 visa application was made on 19 July 2017.  The applicant departed Australia on 18 December 2016 as the holder of a Bridging E (Class WE) visa. The Tribunal finds that the applicant departed Australia on a Bridging E (Class WE) visa that was granted more than 28 days after the applicant last held a substantive visa (that is a Higher Education (Subclass 573)) visa ceased to be in effect.  He is therefore, affected by a risk factor: subclause 4014(4). As the visa application was not made more than 3 years after the visa applicant’s departure from Australia, cl.4014(1)(a) is not satisfied.

   Compelling or compassionate circumstances

9. As aforementioned, the Tribunal must be satisfied that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen an Australian permanent resident or an eligible New Zealand citizen which justify the grant of the visa within 3 years after the date of departure from Australia.

10. There are no definitions of compelling or compassionate circumstances in the Act or Regulations, and there is limited judicial consideration of this provision in the context of PIC 4014.   In making such an assessment, the scope of the meaning of the relevant phrase must be referenced by both the context in which it appears and the purpose of the relevant provision. The considerations that may be relevant to each of the provisions will differ as one relates to the interests of Australia and the other relates to the interests of an Australian citizen/permanent resident/eligible New Zealand citizen.

11. Departmental guidelines for primary decision makers (PAM3) provide some guidance on what may amount to compelling or compassionate circumstances, while making it clear that whether there are compelling or compassionate circumstances depend on the circumstances of the individual case.[1] Whilst not binding, the Tribunal may have regard to the Department’s interpretation and examples of what may constitute compelling or compassionate circumstances. However, the Tribunal should avoid elevating any such interpretation to a statutory requirement and should always bring its consideration back to the words of the provision in PIC 4013(1)(b) and consider the individual circumstances of the case. PAM3 gives the following examples of ‘compelling’ circumstances affecting the interests of Australia were the person not granted the visa:

    ·Australia’s trade or business opportunities may be adversely affected

    ·Australia’s relationship with a foreign government would be damaged

    ·Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example a special skill that is highly sought after in Australia) [2]

    [1] PAM3 - Migration Act - Visa cancellation instructions - Exclusion periods – Compelling circumstances & Compassionate circumstances (reissued 08/07/2016).

    [2] PAM3 - Migration Act – Visa cancellation instructions - Exclusion periods – Compelling circumstances – Affecting the interests of Australia (reissued 08/07/2016).

12. With respect to compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, PAM3 identifies the following examples, including:

    ·A business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry it out

    ·Civil proceedings instigated by an Australian permanent resident would be jeopardised by the absence of the non-citizen witness.

13. With respect to compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, PAM3 examples include that family members in Australia would be left without financial or emotional support; would be unable to property arrange a relatives’ funeral in Australia; or a parent in Australia would be separated from their child.

14. The applicant stated at hearing that in August 2016, before the expiry of his Higher Education (Subclass 573) visa, he applied for a further student (Subclass 500) visa in order to finish his business administration degree at Monash University.  He received an acknowledgement from the Department that his application was submitted and when he checked his status online, he read that his application was pending.  Because he needed to return to Sri Lanka towards the end of 2016 he approached the Department and discovered he was unlawful.  The Department granted him a bridging visa and he went to Sri Lanka until mid-January 2017 when he returned to Australia as the holder of a student (Subclass 500) visa which was granted on 22 December 2016 whilst he was still in Sri Lanka.   The applicant told the Tribunal that he does not know why he was not issued with a Bridging Visa when he applied for the student (Subclass 500) visa in around July/August 2016, prior to the expiry of the Higher Education student (Subclass 573) visa he held at the time. 

15. The applicant said on return to Australia from visiting Sri Lanka in mid-January 2017 he recommenced his studies.  He had completed all of his studies to qualify for the degree except for one subject because he had been too unwell to sit the exam, which was deferred as a result.  However the rescheduled exam took place after his student (Subclass 500) visa had ceased on 30 July 2017.  The applicant approached his university administration however they were unable to issue him a new confirmation of enrolment (COE) unless he was enrolled in a minimum of four subjects.  Unable to apply for a further student visa to finish his final exam, the applicant’s then migration agent advised him to apply for a three month visitor visa in order to sit the exam (and complete his degree).  The applicant told the Tribunal that he sat the final exam in August 2017, has successfully completed his degree, and has graduated.  When asked why, then, he wants the visa to stay in Australia, the applicant said because he initially planned to make use of his degree and gain some work experience in Australia, before returning to Sri Lanka.  He would like to study a master’s degree after obtaining some work experience.  He added that his brother, currently in Sri Lanka, is also planning to come to Australia to study next year. At hearing when asked if he has any family or relatives in Australia, the applicant replied ‘no’ but added that he has a number of close friends here.

16. The Tribunal notes in a pre-hearing submission the applicant’s current representative outlines the applicant’s visa history in Australia in which he clarifies that while the applicant was preparing the documentation to apply for a student visa extension he had to return to Sri Lanka due to an urgent family matter on 10 August 2016 (at hearing the applicant said his grandfather had died); however he applied for the student visa on 12 August 2016 and returned to Australia on the 25 August 2016 (before the expiry of the visa on 30 August 2016); whilst waiting for the visa application to be processed, on 6 December 2016 the applicant received a telephone call from the Department in Canberra advising that he had been classified as an illegal immigrant because he had been in Australia without a valid visa since 30 August 2016; the next day the applicant went to the Department’s Melbourne office and was granted a Bridging Visa E; he was told that if he had applied for his student visa in Australia rather than Sri Lanka, he would have obtained a bridging visa to stay in the country legally after his student visa expired on 30 August 2016 and was advised to return to Sri Lanka in order to complete the visa application process; he then departed Australia for Sri Lanka on 18 December 2016 and was granted a student visa on 22 December 2018, offshore. 

17. The Tribunal found the applicant a credible witness at hearing and accepts his oral evidence about the circumstances that led to him being subject to PIC4014 and his reasons for wanting to remain, temporarily at least, in Australia.  It also accepts that he has close friends here. However none of these considerations constitute, in the Tribunal’s view, compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen which justify the grant of the visa within 3 years after the date of departure from Australia, having regard to the Departmental policy examples set out above.

18. At hearing the applicant acknowledged that he may not meet the criteria for a Visitor visa, but said he sought review of the decision to refuse to grant him the visa in order to try and get the 3 year exemption removed.  The Tribunal explained to him that it is assessing whether he meets PIC 4014 which has already been enlivened and has no power to remove the ‘3 year exemption’.  .

19. The Tribunal notes in a pre-hearing submission the applicant’s current representative submitted that there are compelling circumstances affecting the interests of Australia to justify the grant of the visa in this case because:

    ·The applicant’s last substantive visa was a student visa.

    ·The applicant has been a genuine student in Australia and there is no evidence that he has abused or sought to circumvent immigration laws.

    ·The applicant sought to apply for a visitor visa instead of a student visa because his university would not issue a COE to sit for one exam only.  However there is evidence of a clear continuing study intention when he applied for the visitor visa. 

20. In his submission the representative refers to the following Departmental policy to support his contention that there are compelling circumstances affecting the interests of Australia to justify the grant of the visa in the applicant’s case for the reasons set out above:

    Former Student visa holders

    There may be compelling circumstances affecting the interests of Australia in the case of persons whose last substantive visa was a Student visa and who are applying for a new Student visa. If the applicant’s circumstances, including previous study history in Australia, clearly demonstrate that they have been a genuine student in Australia, and there is no evidence that they have actively or intentionally abused or sought to circumvent immigration laws, s65 delegates may accept that compelling and compassionate circumstances exist. If the student wishes to apply for another Student visa, significant weight may also be given where there is evidence of a clear continuing study intention.

21. The Tribunal accepts that the applicant’s last substantive visa was student visa and his study history in Australia indicates he was a genuine student.  However on the applicant’s own oral evidence to the Tribunal he has now finished his studies and apart from a broad claim at hearing that he may want to undertake a master’s degree in the future he has not given any indication that he has a clear continuing study intention.  For these reason the Tribunal is not satisfied that these factors constitute compelling circumstances that affect the interests of Australia to justify the granting of the visa within 3 years of the departure.

22. Having regard to the totality of the evidence and in all the circumstances of this case, the Tribunal is not satisfied that are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen which justify the grant of the visa within 3 years after the date of departure from Australia.

23. The visa applicant therefore does not satisfy PIC 4014 and hence does not meet the criterion in cl.600.213(1).

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Nicole Burns
    Member