GOMES BAPTISTA (Migration)

[2017] AATA 1651

GOMES BAPTISTA (Migration) [2017] AATA 1651 (13 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr KLEBER GOMES BAPTISTA
Mrs Tauara Da Silva Nogueira

CASE NUMBER:  1611329

DIBP REFERENCE(S):  CLF2016/16298

MEMBER:Penelope Hunter

DATE:13 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 13 September 2017 at 8:45am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine student – Not eligible for streamline visa processing – Eligible vocational education and training student – Onshore application – Exceptional reasons – Eligible education provider – Changing course after application – Professional benefit from study in English

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 572.112, cl 572.211, cl 572.212, cl 572.223, cl 572.227, cl 572.322, r 1.40A

CASES

Kim v MIAC [2008] FCMA 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 on 8 July 2016 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 for the visas on 11 March 2016. They applied for the visa for the first named applicant, Mr Kleber Gomes Bapista (the applicant) to undertake study in Australia. The applicant set out in the application that he proposed to undertake the following courses at IH Sydney Training services Pty Ltd T/as International House;

   ·7D42B920 General English (Elementary to Advanced)

   ·7D42C635 General English (Elementary to Advanced)

   ·7D42CC71 English for Academic Purposes (IELTS Preparation)

   Additionally the applicant was enrolled to undertake an Advanced Diploma of Leadership and Management course code 7D45CB87, at Clarendon Business College Pty Ltd, t/as Clarendon Business College.

3. In March 2016, the Department undertook communication with the applicant and he was advised that the provider of his English course, International House was not an eligible business partner of the provider of his principal course, Clarendon Business College. On 23 March 2016, further information was requested from the applicant asking him to provider exceptional reasons for the grant of the visa onshore.

4. On 31 March 2016, the applicant provided a response stating that he had applied under the streamline visa processing arrangements.

5. On 5 April 2016, the Department responded to the applicant and set out that the study package relied upon by the applicant at the time of application did not meet the requirements for streamline visa processing.

6. On 20 April 2016,the applicant provided new Confirmation of Enrolments (CoEs) with a partnered education provider with Claredon House as follows;

   ·7EBC4675 English Language Programs (Beginner to Advanced)

   ·7EBC5A41 English Language Programs (Beginner to Advanced)

   ·7EBC6011 English Language Programs (Beginner to Advanced)

   The applicant also provided a statutory declaration to the Department which set out that he had been given incorrect advice by a Marketing Manager.

7. The delegate refused to grant the visa on 8 July 2016. The visas were refused on the basis that the applicant was not found to be eligible for the streamline visa processing and he did not establish exceptional reasons for the grant of the visa as required by clause 572.227 of Schedule 2 to the Regulations.

   Relevant Law

8. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and the subclass for which the type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Migration Regulations 1994). The relevant subclass in this case is Subclass 572.

   Streamlined Processing Arrangements

9. For applications made on or after 23 November 2014, applicants seeking to undertake an advanced diploma in a vocational education and training course who meet the definition of ‘eligible vocational education and training student’ are subject to streamlined processing arrangements.

10. The heading to clause 572.21 of the Regulations sets out that the criteria is to be satisfied at the time of application. According to clause 572.212 applicants meeting the definition of ‘eligible vocational education and training student’ for a Subclass 572 visa, must have a CoE in each course of study for which the applicant is an eligible vocational education and training student.

11. An ‘eligible vocational education and training student’ (eligible VET student) is defined in clause 572.211 as an applicant for a Subclass 572 visa where:

    • the applicant is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector;
    • the principal course of study is provided by an eligible education provider; and
    • if the applicant proposes to undertake another course before, and for the purposes of, the principal course, the applicant is also enrolled in that course, and that course is provided by the eligible education provider or an educational business partner.

12. An “eligible education provider” means an education provider specified as eligible education provider in an instrument made under clause 572.112.

13. An “eligible business partner” means an education provider specified as an educational business partner in an instrument made under clause 572.112.

14. Clause 572.223(1A) as introduced for visa applications made on or after 23 November 2014 requires that the applicant is an eligible VET student at time of application and time of decision.

    Exceptional Reasons

15. It is a visa criterion for certain applicants for a Student (Temporary) (Class TU) visa who apply in Australia that they must establish ‘exceptional reasons’ for the grant of the visa.   Practically speaking, where this criterion applies, an applicant cannot enter Australia on another type of temporary visa (i.e. a temporary visa other than a student visa) and then obtain a Class TU visa on the basis of studying in Australia unless he or she establishes exceptional reasons for the grant of the visa.

16. The ‘exceptional reasons’ for grant criterion only applies where:

    • the visa application was made in Australia
    • the applicant is subject to assessment levels 2,  3, 4, or 5 , i.e. the applicant is not subject to streamlined visa processing arrangements  and
    • at the time of application, the applicant was either:

    a.    the holder of a specified temporary visa; or

    b.    if the applicant did not hold a substantive visa, immediately before ceasing to hold a substantive visa, the applicant held a specified visa.

17. The specified temporary visa classes and subclasses for student visa applications include Subclass FA 600 (Visitor) visa.

18. The term ‘exceptional reasons’ is not defined in the Act or Regulations. Exceptional reasons’ in this context are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an applicant that is not subject to the restriction in the criteria. An applicant 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 has had regard to 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).

19. The Department provides guidance to its officers through the Procedures Advice Manual (PAM). These guidelines are not binding upon the Tribunal but are a relevant consideration when determining what constitutes “exceptional reasons”. Current departmental guidelines provide the following instances where ‘exceptional reasons’ may be established:

    • 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 is applying for their first student visa 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).

    Application for Review to the Tribunal

20. The applicants applied the Tribunal on 8 June 2016 for a review and submitted a copy of the decision of the delegate.

21. On 19 May 2017, the applicant submitted to the Tribunal the following documents;

    ·Certificate of Completion of General English Unit for all ELICOS courses, Ability English issued 18 March 2016.

    ·Certificate of Completion of General English, General English, International House, issued 22 April 2016.

    ·Certificate of Completion of English for Academic purposes, Academy of English, issued 27 February 2017.

    ·Letter from Clarendon Business College dated 19 May 2017, confirming that the applicant is enrolled in a Diploma of Project Management with course dated from 16 January 2017 to 24 November 2017.

    ·(untranslated) letter from Faculde De Engenharia Sao Paulo.

    ·Statutory declaration of Lisandra des Ries.

22. The applicants appeared before the Tribunal on 7 June 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. Ms Lisandra des Reis also provided evidence for the applicants.

23. The applicant told the Tribunal that while on his visitor visa he had undertaken an English course. He claimed when he started studying it became apparent that he would need to do further study in order to improve his English to the level he required. The applicant sought advice from the student advisor at his college, Ms des Reis. He was advised that the package that he submitted with his application satisfied the requirements of the streamline visa processing. Ms des Reis confirmed this advice in her evidence, she claimed to have received the information by telephone from the marketing manager from Academies Australasia. She further confirmed that they were all surprised when they received contrary advice from the Department.

24. The applicant confirmed that he was no longer enrolled in the Advanced Diploma of Leadership and Management. He had changed courses to a Diploma of Project Management as he claimed that Project Management was more relevant to his chosen career in Engineering. The applicant was no longer enrolled at the in an Advanced Diploma level due to uncertainty surrounding his visa situation and because the Advanced Diploma he had planned to undertake was no longer being offered. The applicant was scheduled to finish his Diploma in November 2017.

25. The applicant submitted to the Tribunal that it was not his fault that he received incorrect advice. He had intended to satisfy the streamline visa processing requirements. He claimed that with his Engineering studies in Brazil there was the potential perhaps for an economic benefit to Australia in the future. While he was undertaking his study, the secondary applicant, was able to work and contribute to the Australian economy. The applicant claimed that he had completed his courses and demonstrated that he was a genuine student and because of the benefit to his career he should be allowed to finish his study.

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

    FINDINGS AND REASONS

    Streamlined visa

27. At the time of his application, the principle course for the applicant was his Advanced Diploma of Leadership and Management at Clarendon Business College. His other courses were to be undertaken at IH Sydney Training services Pty Ltd t/as International House.

28. The relevant instrument under clause 572.112 at the time of the visa application was IMMI16/003 dated 15 January 2016. International House is not listed as and Educational Business Partner of Clarendon Business College in the instrument. Therefore the applicant was not at the time of his visa application enrolled in a course that was provided by an eligible education provider or an eligible business partner of an eligible education provider in respect of each course of study for which he was an eligible vocational education and training student.

29. The Tribunal considered the further CoEs submitted by the applicant. However, it is an express requirement in clause 572.223 [1A] that the applicant is, and was at the time of application, and eligible vocational education and training student.  The text of the clause contains clear words that it is a time of application criteria. This means that an applicant subject to these provisions cannot access the streamlined ‘genuine student’ criterion by changing course and/or course provider after the time of application.

30. As the applicant was not an eligible vocation education and training student in respect of each course of his proposed study he did not meet the definition of an eligible vocational education training student for a subclass 572 visa and the streamline visa provisions do not apply.

31. The applicant must therefore meet the provisions of clause 572.227 to be eligible for the visa.

    Exceptional reasons

32. The Tribunal has taken into consideration the evidence of the applicant, the secondary applicant and their witness and submissions made on their behalf 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 for the grant of the visa.

33. It is accepted that the applicant may benefit professionally from qualifications from study in English and his current Diploma; however the same could be said for many individuals in the position of the applicant and that is not of itself exceptional. 

34. The Tribunal has also considered the circumstances of the applicant, particularly had he received different advice he would have perhaps been eligible for the streamline visa processing provisions. It is noted that the requirement for the applicant to be an eligible vocational education and training student is also a time of decision criteria. At the time of the Tribunal decision the applicant is not enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector. Therefore on his revised enrolment he would not meet these provisions. It is not considered that the inadequacy of his initial advice or deficits in his original application is an exceptional reason.

35. The Tribunal has considered the evidence of the applicant that he has continued to study and progress through his courses. However this is the expectation of all applicants on student visa, and not considered to be exceptional.

36. The Tribunal has also considered the evidence that the secondary applicant is working and contributing to the Australian economy, again this is a circumstance for many applicants on student visas and not considered of itself to be exceptional. The claim by the applicant that once he obtains his engineering qualifications that he may be able to contribute to the Australian economy is considered speculative. There is no evidence of any actual trade ties with Australia, nor the actual position that the applicant occupy once he completes his education, or how these economic opportunities will eventuate.

37. After considering all the evidence before it, the Tribunal is not satisfied that the reasons advanced by the applicants, either individually or cumulatively establish that there are exceptional reasons for the grant of the visa. The applicant therefore does not establish the criterion in clause 572.227 of Schedule 2 to the Regulations.

38. 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.

39. As the Tribunal has found that the applicant in this case has not satisfied clause 572.227, it follows that the secondary applicant, who has applied as a member of the applicant’s family unit, cannot be a visa under clause 572.322.

    DECISION

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

    Penelope Hunter
    Member