Ezegbe (Migration)

[2017] AATA 267

Ezegbe (Migration) [2017] AATA 267 (16 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Chinenye Ifeoma Ezegbe
Dr Vincent Chigozie Ezegbe
Miss Chizaram Immaculata Ezegbe

CASE NUMBER:  1602892

DIBP REFERENCE(S):  CLF2016/2883

MEMBER:Gabrielle Cullen

DATE:16 February 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 16 February 2017 at 2:34pm

CATCHWORDS

Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – cl 572.227 – Exceptional reasons – Holder of a Subclass 485 (dependent) visa – Early Childhood Education and Care studies – Studies delayed due to pregnancy and childbirth

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 572.227

CASES

Kim v MIAC [2008] FMCA 1577

Kim v MIAC [2009] FCA 161

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 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 12 January 2016. The delegate decided to refuse to grant the visas on 18 February 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa on 18 February 2016 because the first named applicant (the applicant) did not satisfy the requirements of cl.572.227 of Schedule 2 to the Regulations on the basis she had not established exceptional reasons for the grant of the student visa as at the time of application she was the holder of a Subclass 485 (dependent) visa. Further, based on her country of nationality and her course of proposed study she is subject to assessment level 3.

4. The applicant appeared before the Tribunal on 17 February 2017 and gave evidence, together with her husband. The evidence indicates the applicant was a dependent on her husband’s subclass 485 visa at the time of application being 14 January 2016. The CoE submitted and evidence indicates she began her course, Diploma of Early Childhood Education and Care on 14 January 2016 and her evidence is she will finish her course in early March 2017. She indicated she did not start studying earlier as she was pregnant and had her baby on 4 June 2015. She said due to breastfeeding and taking care of her baby she could not begin to study until January 2016.

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

   RELEVANT LAW

6. The issue in the present case is whether the applicant meets the time of decision criterion in cl.571.227. Clause 571.227 relevantly states:

   If:

   (a)      the application was made ; and
   (b)      subject to clause 571.227A, 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 571.211:

   (i)      as the holder of a visa of one of the following classes or subclasses:
   (A)      Border (Temporary) (Class TA);
   (B)      ;
   (C)      ;
   (D)      ;
   (E)      Electronic Travel Authority (Class UD);
   (F)      ;
   (G)      ;
   (H)      ;
   [(I)      ; omitted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
   (IA)      Maritime Crew (Temporary) (Class ZM);
   (J)      ;
   (K)      Retirement (Temporary) (Class TQ);
   [(L)      ; omitted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
   (LA)      Superyacht Crew (Temporary) (Class UW);

   (M)      ;
   (N)      Temporary Business Entry (Class UC);
   [(NA) substituted by SLI 2013, 32 with effect on and from 23/03/2013 - new text - LEGEND note]
   (NA)      Subclass 400 (Temporary Work (Short Stay Activity));
   [(NB) substituted by SLI 2013, 32 with effect on and from 23/03/2013 - previous (NA) - LEGEND note]
   (NB)      Tourist (Class TR);
   [(NC) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - previous (NC) - LEGEND note]
   (NC)      Visitor (Class TV);
   [(O) amended by SLI 2012, 238 with effect on and from 24/11/2012 ('or' omitted) - LEGEND note]
   (O)      Working Holiday (Temporary) (Class TZ);
   [(P) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]
   (P)      Temporary Work (Long Stay Activity) (Class GB);
   [(Q) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]
   (Q)      Training and Research (Class GC);
   [(QA) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
   (QA)      Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;
   [(R) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]
   (R)      Temporary Work (Entertainment) (Class GE);
   [(S) amended by SLI 2013, 32 with effect on and from 23/03/2013 ('or' omitted) - inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]
   (S)      Special Program (Temporary) (Class TE);
   [(T) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
   (T)      Subclass 600 (Visitor); or

   (ii)      as the holder of a special purpose visa; or
   (iii)      as the holder of a visa of one of the following subclasses:

   (A)      Subclass 303 (Emergency (Temporary Visa Applicant));
   (B)      ;
   [(BA) amended by SLI 2013, 33 with effect on and from 23/03/2103 - LEGEND note]
   (BA)      Subclass 485 (Temporary Graduate);
   (C)      Subclass (Graduate — Skilled); or

   (iv)      as a person:

   (A)      who was not the holder of a substantive visa; and
   (B)      who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);

   the applicant establishes exceptional reasons for the grant of a Subclass 571 visa.

7. The ‘exceptional reasons’ for grant criterion applies where: the visa application was made in Australia; the applicant is subject to assessment levels 2, 3, 4 or 5, at the time of application; the applicant was either: the holder of a specified temporary visa; or if the applicant did not hold a substantive visa, immediately before ceasing to hold a substantive visa, the applicant held a specified visa.

8. The term ‘exceptional reasons’ is not defined in the Act or Regulations.

9. An applicant subject to cl.571.227 must establish that there are ‘exceptional reasons for the grant of [the particular subclass of] visa’. ‘Exceptional reasons’ 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. 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’. Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008) at [29], undisturbed on appeal – Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

10. Under departmental guidelines (PAM3) ‘exceptional 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 benefits to Australia’)

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

11. These guidelines are not binding upon the Tribunal but may be a relevant consideration when determining what constitutes “exceptional reasons” in the individual circumstances.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether, at the time of this decision, the first named applicant satisfies cl.571.227 of Schedule 2 to the Regulations for the grant of a student visa.

13. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

14. As the information indicates the applicant was a dependent of a departing temporary resident and has now been studying in Australia for at least one year and wishes to complete her current course or undertake further studies. It accepts she could not start studying earlier as she was looking after her new born baby. It notes that under Departmental guidelines (PAM3) ‘exceptional reasons’ may include this. While it notes these are only examples, considering Department policy it accepts that this situation constitutes exceptional reasons for the grant of the visa.

15. The Tribunal therefore finds that the evidence presented represents exceptional reasons for the grant of a subclass 572 visa and therefore finds that the applicant satisfies the requirements of cl.572.227.

16. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

    DECISION

17. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Gabrielle Cullen
    Member