Nandha (Migration)

[2019] AATA 4994

Nandha (Migration) [2019] AATA 4994 (30 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Jitender Nandha

Mrs Kawaljeet Nandha
Miss Harseerat Kaur

CASE NUMBER:  1730001

DIBP REFERENCE(S):  BCC2015/1401444

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          30 October 2019 at 2:56 pm (VIC time)

DATE OF WRITTEN RECORD:                13 November 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions under review.

Statement made on 13 November 2019 at 4:06pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court – genuine student – exceptional reasons – travel and accommodation costs not exceptional – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), Schedule 2 cls 572.227, 582.227

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 19 June 2015 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 572 visas under the Migration Act 1958 (the Act).

2. At the hearing on 30 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Nandha, to be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations.

4. According to movement records you arrived in Australia with your family on 20 February 2015 as the holder of a subclass 600 tourist visa, which was current until 20 May 2015.

5. You told the Tribunal you came here to watch the Cricket World Cup. On 15 May 2015 you applied for a subclass 582 student visa listing your intended studies as an English language course and a Diploma of Business. On 18 May an email was sent to you explaining that to be eligible for the grant of a student visa applied for onshore, while holding a 600 visa, it was necessary to demonstrate exceptional reasons.

6. You were invited to submit evidence in support of your application regarding your circumstances. You responded saying you had already found accommodation and had enrolled and you did not want to incur the additional travel costs by having to go offshore to apply. You stated your belief that your participation in the Australian economy would be of benefit to the country in that your education fees would contribute to the Australian economy.

7. The delegate found your reasons were not exceptional and refused your application. You appealed that decision to be reviewed by this Tribunal. You appeared before this Tribunal before another Member in August 2015 and having heard your evidence the Member affirmed the decision of the Department to refuse your application.

8. You then appealed that decision to the Federal Circuit Court who sent the decision back to this Tribunal for reconsideration on the basis that the Member had not considered your claims regarding travel and accommodation costs for your family, if they were required to leave Australia.

9. And so we are at today’s hearing. My job is to look at your application afresh and consider if you are eligible for the grant of a visa.

10. To be eligible for the grant of a subclass 582 student visa you must satisfy clause 572.227, which requires an applicant who is in Australia holding a 600 visa to provide exceptional reasons for the grant of a student visa.

11. To satisfy exceptional reasons is quite a high threshold and it may include such things as improvement in bilateral relations between the two countries, or significant economic benefit to Australia.

12. At the first hearing you said you were a business owner and your business in the grain market was being operated by your uncle while you were here with your family. You said your business was funding your stay as money from the business was being sent to you. You said having seen how Australian businesses operate you wanted to learn more so you

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could apply new methods to your business in India, which was why you were keen to study a Diploma of Business.

1. You have today told the Tribunal that you did not study the Diploma of Business because the family did not send you the money because you did not have a student visa. And you say you have done a Certificate III and a Certificate IV in Commercial Cookery.

2. When I asked how you got the funding to do those courses you say you did not do any study, you were granted the certificates as a result of recognition of prior learning. You say that what you now want to do is a Degree in Hospitality Management, which is a far more expensive and a long course.

3. However, when I ask you about exceptional reasons you say, well, they are the same as those provided to the delegate, it is too much for me to go home, the cost would be too much to go home and apply. Costs of travel for the family would be too much and

   accommodation. You say you have subsequently had a new daughter in Australia, which you say makes things more difficult and your wife is not well.

4. You say that if you can study this Bachelor degree in Hospitality and Management the skills and experiences will enable you to manage a substantial business you plan to establish by opening a restaurant in India.

5. If you cannot afford the fees to study a short course in Australia I am not sure how you are going to afford the fees to study a three year degree course and I certainly do not know how you are going to afford the fees to establish a restaurant that you say will be a big business in India.

6. The Tribunal does not accept that the reasons you have offered being; that you do not want to incur the cost and inconvenience of having to go offshore to apply for a visa or any other costs you may incur for travel or accommodation for you and your family, could be classified as exceptional. I do not believe it is exceptional that you have had another child and unfortunately it is not exceptional that your wife is feeling depressed and is not all that well.

7. So as already stated and has been made clear in your previous decisions; if an application for a 572 student visa is made in Australia by someone holding a 600 tourist visa they must establish exceptional reasons for the grant of a visa.

8. The Tribunal does not believe the reasons you have presented meet the definition of exceptional and consequently in the circumstances the Tribunal finds you have failed to provide evidence of exceptional reasons for the grant of a subclass 582 visa. You therefore do not satisfy the requirements of clause 582.227. It is therefore the decision of this Tribunal to affirm the decisions under review.

   DECISION

9. The Tribunal affirms the decisions under review.

   Tim Connellan
   Member

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