Moral (Migration)

[2017] AATA 2434

Moral (Migration) [2017] AATA 2434 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lerma Moral
Mr Romeo Jr Santos

CASE NUMBER:  1616733

DIBP REFERENCE(S):  BCC2016/1034491

MEMBER:Bridget Cullen

DATE:8 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 08 November 2017 at 11:34am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Regressed in study level – Enrolled in same qualifications – Quit jobs and shipped possessions

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 573.212, Schedule 2, cl 573.227

CASES
Kim v Minister for Immigration and Anor [2008] FMCA 1577

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 26 September 2016 to refuse to grant the visa applicant, Mrs Lerma Moral, a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act). The secondary applicant, Mr Romeo Jr Santos, is the husband of the applicant.

2. The applicant applied for the visa on 4 March 2016 to undertake study in Australia. 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 573.

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of her enrolment in a Diploma of Business, Russo Institute of Higher Education and Bachelor of Business, James Cook University.

4. The criteria for the grant of a Subclass 573 visa are set out in Part 573 of Schedule 2 the Regulations. Relevantly to this case they include cl.573.227. The visa was refused because the applicant, who held a subclass 600 visitor visa when the application was made, did not provide the Department with any evidence of exceptional reasons for the grant of the visa, despite being afforded the opportunity to do so.

5. The applicants appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary applicant, Ms Moral, has established exceptional reasons for the grant of the subclass 573 visa, as required under regulation 573.227.

8. The applicant has applied for a Student (Temporary) (Class TU) Subclass 573 visa. The requirements for a visa include the requirement set out in clause 573.227. Clause 573.227 provides that if a person makes an application for a Student (Temporary) (Class TU) Subclass 573 visa in Australia, and the applicable assessment level is an assessment level other than assessment level 1, and at the time of application the primary visa applicant was the holder of certain specified visas, then the applicant must establish exceptional reasons for the grant of the subclass 573 visa.

9. The delegate's decision, a copy of which was provided with the review application, records that the applicant is subject to Assessment Level 2 and is therefore required to demonstrate exceptional reasons for the grant of the student visa onshore. The delegate noted that on 18 April 2016 the applicant was requested to provide information regarding exceptional reasons. The decision further records that the applicant did provide the Department with some additional information relating to her courses, and arguing that the Assessment Level was not correct. She did not, however, respond to the request that she provide exceptional reasons.  At the Tribunal hearing, the applicant conceded that she was subject to Assessment Level 2, and that she was required to provide exceptional reasons.

10. In forming a view as to whether the applicant has established 'exceptional reasons' to the Tribunal's satisfaction, the Tribunal has noted the findings in Kim v Minister for Immigration and Anor [2008] FMCA 1577. In this case His Honour, Smith FM stated at paragraph 7:

    The word 'exceptional' has dictionary meanings: “of the nature of or forming an exception; out of the ordinary course, unusual, special” (OED).  It is commonly used in legislation when giving a decision-maker a power to identify circumstances or reasons justifying the lifting of a statutory rule, where it is intended that the rule will normally apply.

11. After consideration of the legislative scheme and instruments relevant to the requirements of clause 573.227 his Honour also stated at [29] and [30]:

    …In my opinion, it tends to confirm an intention which the complex structure of the regulations suggests. This is that '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 ban imposed by cl.573.227, nor by deciding whether he or she departs from the 'normal' characteristics of the group who are subject to the ban.

    Rather, the decision-maker is required to assume that a visa applicant caught by the criterion 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. The reasons must be capable of being described as 'exceptional reasons' in ordinary parlance….

12. In assessing the criterion in issue, the emphasis is on the word 'exceptional'. As found in Kim (above) the decision maker has a nearly unconfined discretion to address the particular circumstances of the case, however, when determining such exceptions, the decision maker must assume that the visa applicant should not be granted the visa unless some reasons can be positively identified which justify the grant.

13. 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 student visa in Australia and was granted a specified temporary visa and now wishes to undertake further study,

    ·the applicant previously held a student visa and now holds either an FA-600 or a TR- 676 (visitor) visa granted under s.351 (Ministerial intervention).

14. The Tribunal acknowledges that these guidelines are not binding upon it, however it accepts that they are a relevant consideration when determining what constitutes “exceptional reasons” in the individual's circumstances.

15. The applicant has not previously held a student visa; she entered Australia, with her husband Mr Santos, on subclass 600 visitor visas.  The Department’s movement records establish, and the applicants agreed, that they arrived in Australia together on 23 June 2015.  Both applicants gave evidence that the purpose of this visit was to attend the wedding of Mr Santos’s sister. During this visit, Ms Moral said that Mr Santos’s mother suggested that she should come to Australia to study.  Both applicants then returned to Dubai, on 2 July 2016, where they were living at the time.

16. The applicants both gave evidence that following their return to Dubai, they both quit their employment, and shipped their personal possessions to the Philippines, where they both hold passports. 

17. Having quit their jobs, and shipped their possessions to the Philippines, the applicants then travelled again to Australia, arriving together on 13 December 2015, holding subclass 600 visitor visas.    The purpose of this trip was for the applicants to marry in Australia, which they did on 19 December 2015.

18. The applicant claims that she intended to return home to Dubai to study, as her career as a Business Development Consultant/Purchasing Specialist requires further qualifications.  I do not accept this for the following reasons.  Firstly, if the applicant had any genuine intention to return to Dubai, she would not have quit her job, shipped her possessions, and allowed her sister to take over the lease on her apartment. Secondly, the applicant already holds a Bachelor of Science in Commerce from Abada College in the Philippines, which she gave evidence was granted following a 4-year course of study.  In Australia, she has enrolled in qualifications that objectively qualify her for what she is already qualified to do – those being a Diploma of Business through Russo Institute of Higher Education and Bachelor of Business through James Cook University.

19. The applicant claims that the focus on “management” with the Australian courses will benefit her.  The Tribunal invited the applicant to respond to the Tribunal’s concerns that these were essentially the same qualifications.  The applicant replied that the Australian training was “better” as it afforded “real life” learning.  The applicant could not explain why she could not obtain the “real life” experience by actually working in her chosen profession in the Philippines, with the degree qualification she already holds. The Tribunal does not accept this, and finds that the primary reason for enrolment by the applicant in her courses was to extend her stay in Australia.

20. In the submissions lodged with the Tribunal and in her evidence to the Tribunal, the applicant submits that there are exceptional circumstances in this case because she was unaware of the visa requirements for an onshore student visa, including the exceptional reasons requirement. The applicant told the Tribunal that she received incorrect advice about her eligibility to apply onshore, based upon the course she had selected.  She says she believed that the course she had enrolled in entitled her to lodge the student visa application onshore, and she says that she was misled.  There is no evidence before the Tribunal that corroborates the applicant having been misled by the agent who assisted her at the University, as she asserts.

21. The Tribunal does not consider that the applicant’s lack of knowledge about the requirements for an onshore student visa application constitutes exceptional reasons for the grant of the visa. The applicant is responsible for lodging a visa application. It is the applicant's responsibility to make appropriate inquiries as to whether she meets the requirements for a student visa. It is apparent from the applicant's evidence that she made no inquires of the Department about whether the course she intended to enrol in would be one that would result in her being considered an “eligible higher degree student” eligible for onshore Streamlined Visa Processing in accordance with r.573.212.

22. Regardless, the Tribunal does not consider that incorrect advice from a University employee constitutes exceptional reasons for the grant of a visa.

23. The applicant is at the early stages of her studies - her course at James Cook University will not be complete until March of 2019. The applicant asserts that she was unable to leave Australia to apply for a student visa offshore, as she discovered that she was pregnant in June of 2016.  She has now given birth to this child, who is 11-months of age.  There is therefore no longer a reason that prevents the applicant from departing Australia in order to apply for a student visa offshore, if she desires.

24. The Tribunal considers that the applicant has undertaken her studies with the knowledge that, at least since the time of the Department’s refusal on 26 September 2016, she was not eligible for Streamlined Visa Processing.  The risk the applicant took in pursuing this course of action was that she would not complete the course prior to the completion of the review proceedings and that the review outcome may not be favourable to her. She remains at an early stage in her course, with approximately 18-months remaining until completion.

25. As noted above, the Tribunal is not bound by policy however, considering it and all the circumstances of this application, it is not satisfied that the applicant's reasons are in fact exceptional as defined or discussed in the authorities. It appears, as discussed with the applicant at the hearing, that she is using the student visa program to extend her stay in Australia. This is supported by the fact that she initially regressed in her study level (seeking a Diploma where she already holds a 4-year Bachelor’s degree) and is now undertaking a second Bachelor of Business degree (albeit a slightly different focus on “management”).

26. Having carefully considered the applicant's evidence and circumstances, the Tribunal does not consider there is anything exceptional, or even remarkable, in a visa holder wishing to extend his or her stay in Australia for the purposes of study. The Tribunal accepts that the applicant may experience some financial cost and/or inconvenience if she is required to apply offshore for the visa, however she has now been in Australia since December 2015 on a series of temporary visas, so the fact of a requirement to depart is neither unusual nor unanticipated such as to constitute an exceptional reason for the grant of the visa.

27. In reference to the Department's policy guidelines, there was no evidence of the applicant at hearing that indicated any benefit to Australia if she was granted the visa. On the contrary, her evidence centered around the benefits to her of remaining so as to complete another course. Further, as recorded in the delegate's decision, there is no claim or evidence that she is a dependent of a departing temporary resident as described above. In addition there is no claim or any evidence that the applicant was granted an FA-600 or TR-676 visa granted under s.351 of the Act (ministerial intervention).

28. While the Tribunal accepts that the refusal of this visa application may disrupt the applicant's plans, it does not consider these constitute exceptional reasons to grant the visa, given that she is able to make a further application for a student visa. Taking all of the circumstances of this case into consideration, the Tribunal is not satisfied that, individually or cumulatively, they constitute exceptional reasons for the grant of a subclass 573 visa.

29. Having regard to the reasoning in Kim and the ordinary meaning of the words 'exceptional reasons', the Tribunal is not satisfied that the applicant has established exceptional reasons for the grant of the Subclass 573 visa and therefore cl.573.227 is not met.

30. The applicant has made no claims in respect of the other subclasses of visa that fall within the Student (Temporary)(Class TU) visa and on the information available, the Tribunal is not satisfied the applicant could satisfy the criteria for these subclasses.

31. In relation to the secondary applicant, as the primary visa applicant does not meet the primary criteria the Tribunal cannot be satisfied that the secondary visa applicant meets the secondary visa requirements. Therefore, the decision in respect of the secondary applicant must also be affirmed.

    CONCLUSION

32. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.573.227 of Schedule 2 to the Regulations.

    DECISION

33. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Bridget Cullen
    Member