Jiang (Migration) - [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

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).
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.
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.
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 information by 27 September 2023, or request an extension of time, she would lose her entitlement to a Tribunal hearing. The Tribunal did not receive any additional information from Ms Jiang by 27 September 2023.
Since Ms Jiang did not request an extension of time in which to provide the information and did not provide the information by the prescribed date, s.359C of the Act applies and, pursuant to s.360(3), she is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has lost his or her entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[1] The Tribunal is satisfied that s.359C(1) and s.360(2)(c) of the Act apply to Ms Jiang, and pursuant to s.360(3) of the Act Ms Jiang is no longer entitled to appear before it to give evidence and present arguments relating to the issues in his case.[2]
[1] M v MIMA (2006) 155 FCR 333 per Tracey J at [46] and MIMIA v Jing Shan Sun (2005) 146 FCR 498 at [50], also Hasran v MIAC (2010) 183 FCR 413 at [26] confirming the views in M v MIMA and MIMIA v Sun; cf. Khergamwala v MIAC [2007] FMCA 690 (Riley FM, 19 July 2007), however the preponderance of authority has followed MIMIA v Sun and M v MIMA rather than Khergamwala. Also see Giri v MIAC [2011] FMCA 282 (Cameron FM, 28 April 2011) at [21] and [29] upheld on appeal: Giri v MIAC [2011] FCA 928 (Greenwood J, 16 August 2011), and Lokuwithana v MIBP [2017] FCCA 176 (J Jones, 2 February 2017) at [115]-[121] where the Tribunal’s reliance on evidence given at a hearing that it lacked the power to hold resulted in jurisdictional error.
[2] Hasran v MIAC [2010] FCAFC 40.
On 23 October 2023, the Tribunal wrote to Ms Jiang to inform her that she had lost her right to a hearing. It explained that unfortunately the Federal Court has found that the Tribunal does not have any discretion in these circumstances, however it provided her with a further opportunity to provide additional information, as well as any other information that she would like the Tribunal to consider when making its decision. It attached the 13 September letter and requested that additional information be provided by 6 November 2023. Ms Jiang did not respond to the Tribunal’s natural justice letter.
On 11 December 2023, the Tribunal sent Ms Jiang a letter pursuant to s.359A of the Act inviting her to comment on or respond to information that it considered would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review. It requested that the comments or response be given by 27 December 2023. There have been no comments or response from Ms Jiang.
The Tribunal has not had any contact from Ms Jiang since she lodged her application for review on 13 July 2023. Ms Jiang has known since 13 September 2023 that the Tribunal has insufficient information in her matter. She has not provided any additional information despite the Tribunal providing her with a number of opportunities. Therefore, pursuant to s.359C(1) of the Act, the Tribunal has decided to make a decision on the review without taking any further action to obtain the information.
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.
Although there does not appear to be judicial consideration of cl.590.211(3) in particular, the courts have considered the phrase ‘exceptional reasons’ in relation to other criterion in the Regulations. In Kim v MIAC [2009] FCA 161[3] Buchanan J at [5] identifies ‘that “exceptional reasons” mean reasons that are unusual or out of the ordinary … in accordance with authority (Hatcher v Cohn (2004) 139 FCR 425 at [49]-[50], Cohn v Hatcher (2005) 146 FCR 275 at [47]-[48], [63]).’ This was cited in Shashidhar v MIBP [2017] FCA 253.[4]
[3] Which considered ‘exceptional reasons’ for granting a Student visa within the meaning of then cl.573.227 of Schedule 2 to the Regulations.
[4] Per Murphy J at [21]-[22] in considering the meaning of ‘exceptional reasons’ for granting a Student visa, in this case within the meaning of then cl.572.227 of Schedule 2 to the Regulations.
The authority pointed to by the Court in Kim and Shashidhar, in particular, focused on the meaning of the word ‘exceptional’. In Shashidhar, Murphy J notes:[5]
[5] at [23]-[25].
The meaning of “exceptional” has been the subject of judicial consideration on numerous occasions. In Fay v Fay [1982] All ER 922 at 926 Lord Scarman said of the expression “exceptional hardship or depravity” in legislation dealing with matrimonial causes:
It is not possible to define with any precision what is meant by “exceptional” hardship or depravity. The imprecision of these concepts with the resultant impossibility of definition must have been deliberately accepted as appropriate by the legislature and is itself an indication that the determination of what is exceptional is essentially a matter for the judge. All that can be said with certainty is…that the hardship suffered by the applicant (or the respondent’s depravity) must be shown to be something out of the ordinary.
(Emphasis added.)
To similar effect, in Re Washington [1967] QWN 10 Hart J said that “there must be an exceptional as opposed to an ordinary departure from accepted standards of behaviour.”
In Baker v R (2004) 223 CLR 513; [2004] HCA 45 at [173] Callinan J referred with approval to the remarks of Lord Bingham in R v Kelly (Edward) [2000] QB 198 at 208 where his Lordship discussed the expression “exceptional circumstances” in the context of a decision not to impose a sentence of life imprisonment. His Lordship said:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
(Emphasis added.)
In Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548 at [49] Kiefel J said of the expression “exceptional circumstances” in the Health Insurance Act 1973 (Cth):
‘Exceptional’ circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances.
Her Honour’s approach was approved by the Full Court of this Court in Cohn v Hatcher (2005) 146 FCR 275; [2005] FCAFC 199 at [63] (per Lander J, with the approval of Black CJ and Wilcox J).
So ‘exceptional reasons’ are reasons that are outside of the ordinary course, or unusual, or special, or uncommon. But the reason does not need to be unique, or unprecedented, or rare, although it cannot be regularly, routinely, or normally encountered. Reasons that set a person apart from others in a comparable situation can amount to exceptional reasons.
As well as meaning, the courts do provide some guidance on the approach to deciding if there are exceptional reasons. In Hatcher v Cohn[6] Kiefel J also cites Gleeson CJ at [13] in Baker v R[7] where his Honour refers to the use of ‘exceptional’ circumstance (or in this case reasons) as a legislative formula commonly used if discretion should not be confined by precise definitions, or where the potential relevancies are so various as to defy precise definition, because what makes reasons exceptional in a particular case might flow from their weight or quality, or from a combination of factors. Therefore, ‘no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision’ (emphasis added).[8] The limitations suggested in the PIs do not appear in the words of cl.590.211(3). The task of construing the meaning of the words ‘exceptional reasons’ will involve the use of text, context and purpose to give the words the meaning that the legislature is taken to have intended them to have.[9]
[6] at [49]-[51].
[7] (2004) 78 ALJR 1483; [2004] HCA 45.
[8] Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548 per Kiefel J at [50].
[9] Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548 per Kiefel J at [51] and Shashidhar v MIBP [2017] FCA 253 per Murphy J at [17] both citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] (McHugh, Gummow, Kirby and Hayne JJ).
In the case of cl.590.211(3), the ordinary meaning of the words, that is, why the student needs the applicant to reside with him or her, places the focus on the student and the student’s circumstances. This is consistent with the context of a Student Guardian visa as a visa granted to a person to care for a student. Although none of the extrinsic sources consulted completely explain the purpose of cl.590.211(3), the Tribunal assumes that it is based in the reasonable presumption that in the ordinary course of a student’s education a young adult over the age of 18 will be engaging in adult education, either at the tertiary or vocational training level. Therefore, students, in the normal course of study, would not need a student guardian once they have turned 18. It is an integrity measure to ensure that guardians are undertaking the purpose of the Student Guardian visa, to care for Student visa holders, and not remaining in Australia to work or for some other purpose.
In Ms Jiang’s case, the only information available to the Tribunal is found in the undated statement given to the Department. It notes that at the time Ms Li was enrolled in Year 12 and set to complete her secondary study at the end of 2023. However, Ms Jiang claims her Student Guardian visa was due to cease on 1 March 2023. Ms Jiang’s visa was due to cease before Ms Li’s because Ms Li turned 18 on 20 April 2022. In her statement, Ms Jiang provides a number of reasons why it is not practical for her to leave Ms Li while she is still attending school in Australia, including increased difficulties in getting to school, the need for assistance communicating with the school, and ensuring her academic performance. Ms Jiang claims in her statement that her ‘intention is to stay with [Ms Li] until the end of this year [2023] to finish my job as a mother.’
It was the strong opinion of Ms Li’s school, Genazzano FCJ College, that during her final year it was vital that Ms Jiang continue to be present in Australia ‘at least until the end of December 2023’. It pointed out that the final year of secondary school is ‘stressful and demanding’, and for Ms Li with English as her second language ‘the strain she faces is even more pronounced’. The school was sure that Ms Li would greatly benefit from the consistent presence of her mother, who could also assist her with any transition to university.
At the time of this decision, Ms Li has finished her education at Genazzano FCJ College and so Ms Jiang’s goals as stated in her undated statement and the preferences of the College have been fulfilled. That exceptional reason no longer exists. Despite the opportunity to do so, Ms Jiang has not provided the Tribunal with any other reasons, exceptional or otherwise, why Ms Li needs her to continue to reside in Australia now that Ms Li has turned 18 and has completed Year 12. There is no evidence before the Tribunal that she is enrolled in any further and so the school’s suggestion that Ms Jiang could also assist with that transition does not appear relevant.
The Tribunal finds that there are no exceptional reasons at the time of its decision why the nominating student, Ms Li, needs Ms Jiang to reside with her in Australia. Ms Jiang does not met cl.590.211(3)(b) of the Regulations.
Given the above findings, Ms Jiang does not satisfy the criteria for the grant of a Subclass 590 visa. She does not claim to meet the criteria for a Subclass 500 (Student) visa.
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 Hyland
Member