Jiang (Migration)

Case [2024] AATA 2616

Jiang (Migration) [2024] AATA 2616 (15 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Peng JIANG

CASE NUMBER:  2310314

HOME AFFAIRS REFERENCE(S):          BCC2023/1038490

MEMBER:Mireya Hyland

DATE:15 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2024 at 7:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 590 (Guardian) – nominating student over the age of 18 – exceptional reasons must exist – Procedural Instructions (PIs) – no response to s.359(2) invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 352, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 590.211, 590.211

CASES
Baker v R (2004) 78 ALJR 1483
Cohn v Hatcher (2005) 146 FCR 275
Hatcher v Cohn (2004) 139 FCR 425
Kim v MIAC [2009] FCA 161
Shashidhar v MIBP [2017] FCA 253

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 Home Affairs on 27 June 2023 to refuse to grant the visa applicant, Peng Jiang, a Student (Temporary) (Class TU) Subclass 590 visa under s.65 of the Migration Act 1958 (the Act).

  2. Ms Jiang applied for the visa on 9 February 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Ms Jiang applied for the visa as the guardian of a person undertaking study in Australia and does not claim to meet the criteria for a Subclass 500 (Student) visa. The criteria for the grant of a Subclass 590 (Student Guardian) visa are set out in Part 590 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Ms Jiang does not satisfy cl.590.211(3) because the nominated student is over the age of 18 and there are no exceptional reasons why she needs Ms Jiang to reside with her in Australia. That decision was provided to the Tribunal by Ms Jiang with her review application.

  3. The Department of Home Affairs (the Department) provided documents to the Tribunal in accordance with s.352(4) of the Act. They include the visa application form, a Student guardian arrangements 157N form, an undated statement from Ms Jiang, a letter from Genazzano FCJ College dated 7 February 2023, and an undated letter from Genazzano FCJ College. The Tribunal has given consideration to all these documents.

  4. On 13 September 2023, the Tribunal wrote to Ms Jiang pursuant to s.359(2) of the Act and invited her to provide additional information by 27 September 2023 (the 13 September letter). In that letter it explained that if she could not respond to its letter by 27 September 2023, she should ask the Tribunal for an extension of time in which to provide information. The letter informed stated that if Ms Jiang did not provide the requested…

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Details
AGLC
Jiang (Migration) [2024] AATA 2616
Case
[2024] AATA 2616
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Ms Jiang for a Student (Temporary) (Class TU) visa, subclass 590 (Guardian). Ms Jiang sought to be the guardian of her daughter, Zhuolin Li, who held a Student visa to study in Australia. The primary dispute concerned whether Ms Jiang met the criteria for a Student Guardian visa, specifically when the nominating student is over 18 years of age.

The legal issue before the Tribunal was whether there were "exceptional reasons" why Ms Jiang needed to reside with her daughter in Australia, as required by clause 590.211(3)(b) of the relevant regulations. This clause mandates that if the nominating student has turned 18, the applicant must demonstrate exceptional circumstances necessitating their presence in Australia. The Tribunal also considered the interpretation of "exceptional reasons" as outlined in departmental Procedural Instructions (PIs).

The Tribunal noted that the regulations do not define "exceptional reasons" and there was no specific judicial authority on clause 590.211(3). It therefore turned to departmental PIs, which suggest that exceptional reasons might include strong religious or cultural grounds for a chaperone, or medical grounds requiring a relative as a carer. The PIs explicitly state that claims relating to the maturity of the student or parental-type responsibilities are generally not considered exceptional. In this case, Ms Li was 19 years old and her Student visa was due to expire, with no further study enrolled. The Tribunal found that the provided information did not establish exceptional reasons for Ms Jiang to reside with her daughter in Australia.

Consequently, the Tribunal affirmed the decision not to grant Ms Jiang the Student (Temporary) (Class TU) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in this case is whether there are exceptional reasons why Ms Jiang needs to reside with her daughter in Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE A Student Guardian visa is for an applicant who is the guardian of a Student visa holder, generally who has not turned 18 years of age. The applicant must be nominated by the holder of a Student visa and there are a range of primary criteria that need to be satisfied at the time of decision. However, if the nominating student is over the age of 18, there must be exceptional reasons why he or she needs the applicant to reside with him or her in Australia. Applicants must also have a genuine intention to reside with the student and the student must have a genuine intention to reside with the applicant not another guardian, be genuine applicants for entry and stay as student guardians, and have genuine access to sufficient funds, as well as other public interest criteria and criteria relating to non-student minors. Ms Jiang was born in Hubei, China on 25 September 1977 and is 46 years of age. She married Wenguo Li on 13 January 1998 and there are two children of the marriage, a son born on 9 March 2001 and a daughter, Zhuolin Li, born 20 April 2004. Ms Jiang and Mr Li divorced in 2005. Ms Li, who is now 19 years old, was a student in Australia. Ms Jiang was her guardian. Ms Li started her secondary school studies in Australia on 1 February 2018 and completed her studies on 8 December 2023. Ms Li was granted a Student (Temporary) (Class TU) Student (Subclass 500) visa on 3 February 2023 which is set to expire on 15 March 2024. She has not enrolled in any further study in Australia and no further student visa application has been made. Because Ms Li is over the age of 18, Ms Jiang must meet cl.590.211(3). It states that the applicant meets the requirements of that subclause if:(a)the nominating student has turned 18; and(b)there are exceptional reasons why the nominating student needs the applicant to reside with the nominating student in Australia; and(c)the applicant is able to:(i) provide appropriate accommodation and support for the nominating student; and(ii) provide for the general welfare of the nominating student; and(d)the applicant is a person who:(i) is a relative of the nominating student; and(ii) has turned 21.Clause 590.111 states that nominating student means a person who: (a) nominates the applicant on form 157N; and (b) at the time of decision holds a Student visa that was granted on the basis that the person met the primary criteria for the grant of the Student visa. Ms Jiang provided the Department with a form 157N in which she is nominated by Ms Li who holds a Student visa to study in Australia until 15 March 2024. Since the nominating student, Ms Li, has turned 18 (cl.590.211(3)(a)), there must be exceptional reasons why Ms Jiang needs to reside with her in Australia. Neither the Act nor the Regulations define ‘exceptional reasons’ and the Tribunal is unaware of any judicial authority relating specifically to cl.590.211(3). As such, it turned to departmental policy found in the Procedural Instructions (PIs) dated 21 September 2018 that provide procedural guidance for processing applications for Student Guardian visas. Under the heading Exceptional reasons must exist the PIs state:Under clause 590.211(3)(b), if the nominating student is 18 or older, the Student Guardian visa applicant must provide evidence of exceptional reasons requiring them to accompany and reside with the nominating student in Australia.Exceptional reasons are not defined in legislation. Under policy, exceptional reasons may include, but are not limited to, evidence that:·there are well-recognised and strong religious or cultural grounds requiring the student to have a relative as a chaperone at all times in their home country or·the student requires a relative to be their carer on medical grounds (and has a carer in their home country). If the carer would be remunerated for caring for the student, officers should consider whether the applicant should be assessed under the ‘bilateral benefit’ requirements, as bilateral benefit cases are permitted to work in the occupation specified in the application. (Refer to Student Guardian visa conditions).Any other situations should be emailed to the Student Visa Help Desk for advice. (Note, however, that claims going to the maturity of the student, or to parental-type responsibilities of the Student Guardian visa applicant to the student, would generally not be considered exceptional.)However, it is unclear why the maturity of the student and his or her need for the guardian to fulfil responsibilities that are the purpose of the Student Guardian visa are insufficient. Those qualifications to what is an exceptional reason are not to be found in the Regulation itself.

Decision

Reasons for decision

Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.Mireya HylandMember

Ratio Decidendi

Legal Principle Established

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