Ghotra (Migration)

[2019] AATA 6232

Ghotra (Migration) [2019] AATA 6232 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilpreet Singh Ghotra

CASE NUMBER:  1807645

DIBP REFERENCE(S):  CLF2015/20225

MEMBER:Gabrielle Cullen

DATE:29 October 2019

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

Statement made on 29 October 2019 at 12:20pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court remittal – Diploma of Business – unique or exceptional reasons not established – benefits of studying and working in Australia apply to all students – time of decision criterion – procedural fairness – non-disclosure of information subject of non-disclosure certificate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth) ss 65, 375A
Migration Regulations 1994 (Cth), 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 a decision made by a delegate of the Minister for Immigration on 28 May 2015 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 2 April 2015. At the time of lodgement, the applicant was the holder of a Visitor (subclass 600) visa. Where the applicant is the holder of a Visitor visa when making an application for a Class TU visa in Australia he or she must, in most cases, establish exceptional reasons for the grant of the visa (see cl.570.227, cl.571.227, cl.572.227, cl.573.227, cl.574.227, cl.575.227 and cl.580.227 of the Regulations). For all but the Subclass 580 (Student Guardian) visa this requirement does not apply to applicants where they use a passport relevantly prescribed for Assessment Level 1 under r.1.41 (see cl.570.227A, cl.571.227A, cl.572.227A, cl.573.227A, cl.574.227A and cl.575.227A of the Regulations).

3. The delegate decided to refuse to grant the visa on 28 May 2016 because the applicant did not satisfy the requirements of cl.572.227 of Schedule 2 to the Regulations. The delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a Diploma of Management. He noted that at the time of application he was the holder of a Subclass 600 tourist visa and based on his country of nationality, being India and his course of proposed study he was subject to assessment level 3 according to IMMI 14/014. He refused to grant the visa on the basis the applicant had not established exceptional reasons for the grant of the student visa as required by cl.572.227.

4. The applicant applied to the Tribunal on 12 June 2015 for review of the delegate’s decision.

5. On 6 November 2015, the applicant provided the Tribunal (differently constituted) with a CoE from Academies Australasia Institute to study a Certificate IV in Business; Diploma of Management and Advanced Diploma of Management. He also submitted an extract from the Non University Streamline Educational Provider list, indicating that Academies Australasia Institute is a ‘streamline’ educational provider. It was submitted that as the applicant is now enrolled in courses that are part of the streamlined visa processing, the applicant meets the exceptional reasons for grant criterion.

6. The applicant appeared before the Tribunal (differently constituted) on 13 November 2015 and again on 15 July 2016 to give evidence and present arguments.

7. At the hearing the applicant stated that he had arrived in Australia in August 2014 and held a visitor visa immediately before applying for his student visa. He stated that at the time of application, he had an offer of enrolment in a Diploma of Business at Apex College. However, he now has an offer of enrolment from Academies Australasia Institute for a Certificate IV in Business; Diploma of Management and Advanced Diploma of Management. When it was put to him that he needed to establish exceptional reasons for the grant of the visa, he stated that he would like to study business because this would help him in the future. The applicant’s representative reiterated the argument set out in his submission, contending that the applicant is now subject to streamlined visa processing arrangements and exceptional reasons for grant criterion does not apply. 

8. In a submission dated 30 November 2015, the applicant’s representative submitted that as the applicant has now submitted CoE’s in respect of proposed courses of study for streamlined courses, and as these have been submitted prior to decision, the Tribunal should have regard to these in its assessment. Alternatively, the applicant’s representative requested additional time to submit a further CoE for a Bachelor degree in a streamlined course, which would enable the Tribunal to consider the application as a Subclass 573 visa application, as there is no similar provision in the Subclass 573 regulations to that contained in cl.572.212.

9. On 24 December 2015, the applicant’s representative submitted an offer of enrolment in a Bachelor of Business from Wentworth Institute, dated 23 December 2015.

10. On 9 May 2016, the Tribunal contacted the applicant’s representative, enquiring as to whether the offer of enrolment from Wentworth Institute he had previously provided was still valid and whether he had a current CoE.

11. On 12 May 2016, the applicant resubmitted the December 2015 offer of enrolment from Wentworth Institute.

12. On 18 July 2016 the Tribunal (differently constituted) affirmed the delegate’s decision. In the decision the Tribunal (differently constituted) found that at the time of application, the applicant was not an eligible vocational education and training student because he was not enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector provided by an eligible education provider. It found that, cl.572.223(1A) and cl.573.223(1A) do not apply to the applicant and the applicant must give the Minister evidence in accordance with the requirements of Schedule 5A for the highest assessment level for the applicant (cl.572.223 and cl.573.223). The Tribunal (differently constituted) then considered whether there were any exceptional reasons for the grant of the visa. It noted that at the first hearing when asked whether there were any exceptional reasons for the grant of the visa, the applicant stated that he wanted to do a business course because this would assist him with his future. The Tribunal did not accept that exceptional reasons for the grant of the visa were established and found that the applicant did not satisfy cl.572.227 or cl.573.227.

13. On 20 December 2017 the Federal Circuit Court ordered that this matter be reconsidered as the Tribunal (differently constituted) denied the applicant procedural fairness on the basis of the non-disclosure of the information the subject of the non-disclosure certificate.

14. On 9 October 2019 the Tribunal wrote to the applicant and invited him to attend a hearing on 29 October 2019.

15. On the day of the hearing the applicant via his representative provided a COE indicating he is enrolled in a Diploma of Business from 18 November 2019 to 12 November 2020, evidence of funds in HDFC Bank and a submission as follows.

    We respectfully submit that Visa applicant currently has genuine intentions to study in Australia. Visa applicant has obtained the CoE and paid the fees to College to Study in Diploma of Business in Southern Cross School of Business.

    Visa applicant has met the requirement of Admission and have genuine funds available to Study in Australia. CoE and Financial documents have been attached for your reference.

    Since the Student Visa refusal, visa applicant has been uncertain about his future study in Australia and has been waiting for the favourable outcome. Visa applicant was not sure about the time frame of AAT process and Federal Court Time. Review of the Student visa refusal has been in process, for lot more than expected time frame, including the AAT and Federal Court processing time.

    Visa applicant was here in Australia on Training Visa Subclass 402 and completed within the time frame. Then he applied for Tourist Visa to enjoy the Cricket Matches in different cities of Australia, which was granted. Visa applicant travelled around Australia with his friends and decided to study in Australia

    Later Visa applicant applied for Student visa, which was refused, for not holding a qualifying visa at the time of student visa application. Visa applicant was not aware of such condition, at the time of student visa application.

    At that time Visa applicant needed to hold one of the qualifying visas to apply for Student visa onshore. Subclass 402 was a qualifying visa to apply for Student visa onshore, not the Tourist visa. If Visa applicant had applied Student visa, while holding subclass 402, Student visa would have been granted.

    Since circumstances have changed and We have witnessed that Significant number of tourist visas have been converted to Student visas onshore, in last 2 years, in Australia, under the current student visa policies.

    Visa applicant arrived in Australia on 8th August 2014. He travelled back home on 20th January 2017 and arrived back in Australia on 3rd April 2017, followed by the departure on 21th March 2018 and back on 01/05/2018. During this break Visa applicant travelled to Bali from 27/03/2018 to 02/04/2018.

    Again, Visa applicant had to travelled back home to meet his family on 5/02/2019 and arrived back in Australia 16/04/2019. This indicates that the Visa applicant has strong family and economic ties back in India and great incentives to return home after the completion of the course.

    We respectfully submit visa applicant should be granted an opportunity to prove himself a genuine student in Australia

16. The applicant appeared before the Tribunal on 29 October 2019 and gave evidence. His representative attended the hearing. When it was explained that he is required to show exceptional reasons for the grant of the visa to meet cl. 572.227 as he applied onshore while the holder of s subclass 600 visa and is subject to Assessment Level 3, the applicant referred to the benefits his study of the Diploma of Business and then a Bachelor degree in Australia will have on him, his career, his future and his family. He referred to the benefits his study by paying fees would have on Australia and taxes when he works. His representative referred to his submission and noted that if the applicant had applied while the holder of the subclass 402 visa, which he held prior to the subclass 600 visa, he would not have had to show exceptional reasons. It was also discussed that after 1 July 2016 there is no requirement to shown exceptional reason for the grant of the student visa. The applicant noted his subclass 600 visa he held at the time he applied for was only valid for three months. The Tribunal asked whether he is currently enrolled in a streamlined course and he said he is not. The Tribunal asked whether he had successfully completed any course in Australia and he said he had not and referred to family issues in India and that he did not commence any course as he was unsure and worried as to whether his visa would be granted.

17. The Tribunal questioned whether the evidence indicated these were exceptional reasons for the grant of a student visa as they did not seem unique or exceptional and the benefits of studying and working in Australia that he highlighted appeared to apply to all students.

18. The Tribunal further noted that the Department had issued a s.375A non-disclosure certificate on 2 June 2016 which was the issue before the Federal Circuit Court. The Tribunal noted that the s.375A certificate stated that it would be contrary to the public interest to disclose the documents subject to the certificate as the information was an allegation and the source expected anonymity. The Tribunal stated that in its view the certificate is valid; however provided the applicant with the gist of the allegation, as had already been done so in the Federal Circuit Court proceedings. It advised the applicant that in its view the information attached to the Certificate was irrelevant to the issue before it as to whether there are exceptional reasons for the grant of the student visa and the Tribunal would place no weight on it in making its decision.

    RELEVANT LAW

19. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.227. Clause 572.227 relevantly states:

    If:

    (a)      the application was made ; 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:
    [(i) amended by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]

    (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 572 visa.

20. 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.

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

22. An applicant subject to cl.572.227 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).

23. 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).

24. 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

25. The issue in the present case is whether, at the time of this decision, the applicant satisfies cl.572.227 of Schedule 2 to the Regulations for the grant of a student visa.

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

27. As the information above indicates the applicant is a citizen India who held a subclass 600 visa, valid to 4 April 2015, at the time he applied for the student visa on 2 April 2015. Based on his current course of study, being a Diploma of Business, and country of passport, being India, the applicable assessment level is level 3 (IMMI 14/014); the applicant must satisfy cl.572.227 of Schedule 2 of the Regulations.

28. The Tribunal notes that the applicant stated at hearing that he is not enrolled in a streamlined course. While this issue was considered by the Tribunal (differently constituted) previously; as the applicant is not currently enrolled in such a course it is no longer an issue before the Tribunal.

29. The Tribunal has considered the applicant’s claims and evidence about why he wishes to study in Australia and the exceptional reasons for the grant of the visa. The Tribunal is not satisfied that the reasons provided by the applicant are exceptional reasons for the grant of a student visa. Firstly, as to the study benefits that will improve his future, career and benefit his family, these are personal to him and relate to his own study, career goals and benefits to him and his family. It is of the view that these reasons are not exceptional or unique and apply to many people studying in Australia. Secondly, as to his claim that by studying in Australia to the Bachelor level this will benefit Australia through fees and taxes paid as he will be able to work, the Tribunal is of the view that these reasons are not exceptional or unique and apply to many people studying and working in Australia. Thirdly, with regard to reasons raised in the representative’s submission dated 26 October 2019, the Tribunal does not accept that the availability of funds or strong family ties in India or travel to India or being a genuine student are exceptional reasons as many students hold funds, have family abroad, are genuine, study and regularly return home. It also does not accept that because the applicant could have in the past applied while the holder of a subclass 402 visa, when he held one previously, and avoided having to meet this criterion or that due to the change in the student framework many people in the past two years are applying for student visas and being granted them while on tourist visas are exceptional reasons. The Tribunal does not view that because the student framework has changed in the intervening years or because the applicant through lack of knowledge applied while the holder of a tourist visa and not a subclass 402 visa are circumstances that are exceptional or out of the ordinary for the grant of the student visa.

1. The reasons he has given are not in the nature of, or of the type of matters as detailed in PAM3.

2. The Tribunal has considered the claims presented by the applicant individually and cumulatively, however, on the evidence before it, does not accept that exceptional reasons for the grant of the visa have been established. For these reasons, it is not satisfied that the applicant has established exceptional reasons for the grant of the visa and therefore finds that he does not satisfy cl.572.227.

3. The other subclasses within the Class TU visa class have equivalent provisions to cl.572.227.  For the reasons given above, the Tribunal also finds that the applicant does not meet the requirements for these subclasses.  Accordingly, the decision under review must be affirmed.

4. Furthermore, there is no evidence that the applicant meets the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Class TU visa. The applicant is neither supported by the AusAID or Defence Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

5. For these reasons, the decision under review must be affirmed.

   DECISION

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

   Gabrielle Cullen

   
   

   Member