MANDANGU (Migration)

[2017] AATA 1865

MANDANGU (Migration) [2017] AATA 1865 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KENNEDY NDAIZIWEI MANDANGU

CASE NUMBER:  1615164

DIBP REFERENCE(S):  BCC2016/2877081

MEMBER:Tigiilagi Eteuati

DATE:5 October 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 05 October 2017 at 6:14pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Exceptional circumstances – Undue hardship – Financial burden – Intention to keep studying – No evidence to support claims – Lack of exceptional circumstances

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.211, 600.215, 600.221, 600.222, Schedule 8, 8101, 8201

CASES

Maan v Minister for Immigration and Citizenship [2009] FCAFC 150

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 2 September 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 August 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.215, which requires that for the grant of a visa which would result in authorising a stay of more than 12 consecutive months as the holder of a visitor, working holiday, work and holiday or a bridging visa, there must be exceptional circumstances for the grant of that visa. The criteria also include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate did not accept that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.

5. The applicant appeared before the Tribunal on 7 February 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issues in this case are whether cl.600.215 and cl.600.211 are met.

8. Clause 600.215, requires that for the grant of a visa which would result in authorising a stay of more than 12 consecutive months as the holder of a visitor, working holiday, work and holiday or a bridging visa, there must be exceptional circumstances for the grant of that visa.

9. Clause 600.211, requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

10. In the present case, the visa applicant seeks the visa for the purposes of applying for a student visa and admission to a Masters degree at an Australian tertiary institution or applying for a permanent visa. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222. Clause 600.222 does not prevent the grant of the visa as the applicant is not currently enrolled in a registered course.

11. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

12. There is no evidence to suggest that the applicant has breached the conditions of visas he has previously been granted.

13. The Tribunal has also had regard to whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject. In the absence of evidence that the applicant meets the criteria in clause 600.611(4), the applicant would be subject to conditions 8101 and 8201. These conditions prohibit work and study exceeding 3 months respectively.

14. The Tribunal has considered all other relevant matters and has considered the relevant Departmental guidelines in PAM3.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Clause 600.215

15. The Tribunal will first consider whether cl.600.215 is met. Clause 600.215 provides:

    “(1)  If subclause (2) applies--exceptional circumstances exist for the grant of the visa.

    (2)  This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:

    (a)  one or more visitor visas;

    (b)  a Subclass 417 (Working Holiday) visa;

    (c)  a Subclass 462 (Work and Holiday) visa;

    (d)  a bridging visa. “

16. In Maan v Minister for Immigration and Citizenship [2009] FCAFC 150, the Full Court of the Federal Court (Dowsett, Greenwood and Collier JJ) said the following about the expression exceptional circumstances [at paragraph 51]:

    “Although the expression "exceptional circumstances" is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

    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. (cf Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [25])”

17. The Departments Procedures Advice Manual (PAM3) relevantly provides:

    “Under policy, exceptional circumstances may include: 

    ·the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support

    ·a change in the applicant’s circumstances (or the circumstances of an Australian resident) that:

    ocould not have been anticipated at the time their visitor visa was granted and

    ois beyond the visa applicant’s control and

    owhere not granting a visa would cause significant hardship to an Australian resident or citizen.” 

18. The applicant first arrived in Australia in 2008 to study a Bachelor of Commerce degree. He completed this degree in August 2013. He remained in Australia on a visitor visa and a bridging visa until he was granted a Subclass 485 Graduate visa in July 2014. This visa expired in January 2016. He has since held 2 visitor visas and 3 bridging visas. His application for his third visitor visa since his subclass 485 expired was refused on 2 September 2016 and it is this decision that he seeks to have reviewed. As the applicant has been living in Australia on visitor visas and bridging visas since January 2016, the grant of another student visa would result in the applicant being authorised to stay in Australia on visitor and bridging visas for a total period of more than 12 consecutive months:

19. The Tribunal notes that since the applicant first arrived in Australia in 2008 he has been absent from Australia for less than 20 days and has been absent from Australia for less than 2 days since September 2010.

20. The applicant claims that he wishes to remain in Australia and either apply for a student visa to complete a Masters degree or to apply for permanent residence in Australia. The applicant claims that he needs the student refusal overturned because the refusal of his student visa application means that he can not apply for another student visa or for a permanent visa onshore. The applicant claimed that he wanted to complete a Masters degree because he did not perform as well as he would have liked with his Bachelor degree owing to circumstances beyond his control. He said that he would be able to find work in Zimbabwe if he had a Masters degree whereas he was unlikely to find work in Zimbabwe without a Masters degree as there was a high level of competition for jobs in Zimbabwe and his marks for his bachelor degree were low.

21. The applicant claimed that the reason that he had not applied for a student visa previously was because he needed to obtain an overall score of 7 in an IELTS test including at least a 7 in each of the 4 IELTS components in order to be enrolled in a Master of Finance degree at Griffith University. The applicant said that although he had attained a 7.5 overall IELTS score in 2015 he had only scored 6.5 in one of the components of the test and therefore did not meet the criteria for entry into the course.

22. The applicant also claimed that he needed to obtain an overall score of 7 in an IELTS test including at least a 7 in each of the 4 IELTS components in order for his degree to be assessed by CPA Australia as suitable for skilled migration to Australia.

23. The applicant has provided evidence that in October 2016 he attained an overall score of 8 in IELTS, scoring over 7 in each component of the test.

24. The applicant provided the Tribunal with a letter from CPA Australia indicating that as of 12 December 2016 he had been assessed as “academically suitable for migration under ANZSCO 221111 – Accountant(General).”

25. The Tribunal asked the applicant to provide evidence to the Tribunal to support his claims that he was unable to obtain enrolment in a Masters degree or be successfully assessed by CPA unless he obtained an overall score of 7 in an IELTS including at least a 7 in each of the 4 IELTS components. The applicant did not provide evidence to support either of these claims and the Tribunal is unable to accept the claims without an evidentiary basis for them.

26. The applicant said that exceptional circumstances existed for the grant of the visa because if the visa is not granted, he will have to return to Zimbabwe to apply for another visa and will incur travel costs and migration agent costs in order to return to Australia.

27. The Tribunal has found that exceptional circumstances do not exist for the grant of the visa. This is a case which is not out of the ordinary course, or unusual, or special, or uncommon. Rather, it is one that is regularly, or routinely, or normally encountered. This is a case where the applicant’s substantive subclass 485 visa expired and the applicant has remained in Australia on visitor visas and bridging visas. The applicant could not have expected to remain indefinitely in Australia on these types of visas. He could have applied for a student visa or another visa before his last visitor visa was refused but did not do so. He has provided no evidence that he was prevented from applying for a student visa or a Masters degree owing to not meeting the required IELTS scores.

28. The only apparent difficulty for the applicant is that he will have to apply for his next visa offshore. This may be more costly than applying in Australia because he will have to pay for a flight out of Australia, and then a flight back to Australia if he is granted a visa. The Tribunal would have thought that the applicant will incur migration advising fees whether he applies in Australia or offshore.

29. The Tribunal notes that the applicant claims he has been living in Australia for almost 2 years without working after his subclass 485 visa expired. He claims that his brothers and cousin have been supporting him financially since that time. The applicant proffered no evidence as to why his brothers and cousin could not help him with travel expenses. Indeed, it appears that they would have saved a great deal of money if they had paid for the applicant’s travel expenses to return to Zimbabwe in January 2016 when his subclass 485 visa expired, rather than paying for all of his expenses in Australia for almost two years while he has attempted to remain in Australia on visitor visas and bridging visas.

30. For the above reasons the Tribunal is not satisfied that exceptional circumstances exit for the grant of a Visitor visa to the applicant. Therefore, the applicant does not meet the criterion in cl. 600.215 for the grant of a visitor visa.

31. As the Tribunal has found that the applicant does not meet the criterion in cl. 600.215 for the grant of a visitor visa it is unnecessary for the Tribunal to consider whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

32. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Tigiilagi Eteuati
    Member