Pornchanoknat (Migration)

[2017] AATA 230

Pornchanoknat (Migration) [2017] AATA 230 (8 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Pichapa Pornchanoknat
Mr Manuel Alejandro Cordero Colin

CASE NUMBER:  1605766

DIBP REFERENCE(S):  bcc2016/495293

MEMBER:Penelope Hunter

DATE:8 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2017 at 9:48am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Exceptional reasons for visa grant – Course enrolments – Academic progress – Family business importing to Australia – Promoting Australian education in Thailand – Voluntary work in aged care

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 572.227, 572.322

CASES

Kim v MIAC [2008] FCMA 1577

KIM v MIAC [2009] FCA 161

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. Miss Pichapa Pornchanoknat is the primary applicant. Her husband, Mr Manuel Alejandro Cordero Colin, is a secondary applicant.

3. The applicants applied to the Department of Immigration and Border Protection for the visas on 22 January 2016. The primary applicant proposed to undertake a Certificate III in Business with course dates from 29 February 2016 to 14 August 2016, a Certificate IV in Business with course dates from 3 October 2016 to 2 April 2017, a Diploma of Business with course dates from 29 May 2017 to 14 January 2018 and an Advanced Diploma of Business with course dates from 12 March 2018 to 28 October 2018.

4. In refusing to grant the visa the delegate found that the applicants did not satisfy the requirements of cl 572.227 of Schedule 2 to the Regulations. It was not considered that they were able to establish exceptional reasons for the grant of the student visa.

5. The applicants applied for a review of that decision by this Tribunal on 26 April 2016, and annexed a copy of decision of the delegate to their application.

6. The applicants appeared before the Tribunal on 1 February 2017 by conference telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   CLAIMS AND EVIDENCE

8. The primary applicant has made numerous trips to Australia and prior to the visa application under review. She last arrived in Australia on 29 March 2015 as the holder of a Temporary Work (skilled) Principal Applicant Onshore (UC 457) visa.

9. With her application for the visa the primary applicant submitted evidence of her offer of enrolment, confirmation of her Bachelor of Laws Degree from the University of Thailand and evidence of financial support from the secondary applicant and her mother-in-law, Ms Colin Blas.

10. In further submissions to the Department provided 22 March 2016, the primary applicant stated that with the grant of the visa she could contribute as a volunteer in aged care as she has previous undertaken aged care training. The Department was provided with copies of a Certificate III in Aged Care and a Certificate III in Disability, both issued to the primary applicant on 14 February 2014. Additionally, the primary applicant submitted that another possibility was studying a business course, as her family and cousins have their own business in Thailand and she thought it was time to help the family business seriously. While she was studying the primary applicant claimed she would find out the options or opportunity to import and export clothing from her uncle’s business in Thailand to distribute in Australia, setting up her own business. The applicant claimed she would create jobs for local people, improve Australian business and add to the Australian economy. The primary applicant also claimed that the fees she paid as a student would contribute to the Australian government improving scholarship opportunities for Australian students.

11. With her application for review to the Tribunal, received on 26 April 2016, the primary applicant provided further submissions. The primary applicant claimed she undertook study in the Certificate III in Aged Care and the Certificate III in Disability at an earlier time while holding a 457 Visa as a member of the family unit of the secondary applicant. She undertook study as she wanted learn something new and useful. She was planning to undertake a business course; this was to add to her business skills to carry on her family businesses which are electrical contracting and manufacturing baby clothes in Thailand. The secondary applicant’s employer became bankrupt and his visa was due to expire, as she had already planned to undertake a business course, she applied for the Student visa. She believes she has complied with all relevant provisions of Australia’s migration law. In addition to her submission the primary applicant provided the Tribunal further documents including the certificates of completion of the Preparation for IELTS Course in 2009, Intensive General English course in 2009, marriage certificate to the secondary applicant with translation, evidence of previous grant of an Australian Student visa in 2009 and a Tourist visa in 2011, and a statutory declaration of Rex Anderson, dated 20 November 2013 supporting that the primary applicant is in a genuine relationship with the secondary applicant.

    Tribunal Hearing

12. The primary applicant confirmed that she was currently studying and progressing through her proposed courses. She had completed the Certificate III in Business, and she has submitted to the Tribunal a copy of her certificate of completion. The primary applicant was also working part-time, 20 hours per week. The secondary application was not working. The applicants were supporting themselves from the wages of the primary applicant and funds from the mother of the secondary applicant. It was confirmed that they had sufficient funds for their support.

13. When asked what was an exceptional reason that the visa should be grant to her the primary applicant submitted to the Tribunal that she would like to have the opportunity to complete her studies and then return to her home country. The Tribunal asked the primary applicant to whether there were any exceptional reasons why she could not apply for her visa offshore. She claimed that although she was initially unsure whether she could apply for the visa onshore her agent assured her that it was possible. She had relied on this advice and spent money applying for the visa and enrolling in study. This incomplete advice from her agent was a further reason she submitted the visa should be granted. The primary applicant also submitted that she had incurred expenses and paid fees for her studies to date and she would be put to additional expense if she had to return to Thailand and apply offshore for a student visa.

14. The applicant also discussed with the Tribunal her opportunities to work in her family businesses. The Tribunal questioned the primary applicant about her claims that through her uncle’s business she could create jobs and add to the Australian economy. She advised that her uncle manufactured children’s clothing and had asked her about the opportunity to import his garments into Australia for distribution. She proposed to review relevant laws and provide him with advice. It was a future target for his business to explore this opportunity and was not yet something that begun. The applicant stated that it was not a set plan.

15. The Tribunal questioned the primary applicant about her submission in relation to her volunteer work and how this was an exceptional reason for the grant of the visa. She advised that she wrote the submissions before she started studying, and she had additional time and she used to undertake volunteer work.

16. The Tribunal asked the primary applicant if there was anything exception about her or her application that would improve bilateral relations between Australia and another country. She claimed that once she had finished her studies when she returned to Thailand she could tell people how good it was to study in Australia and she would promote study in Australia to other people.

    REASONS AND FINDINGS

17. The primary applicant is the holder of a passport from Thailand; the secondary applicant is the holder of a passport from Colombia. The primary applicant has applied for a Student (Temporary) (Class TU) (Subclass 572) visa on 20 January 2016.

18. The primary applicant was the holder of a Temporary Work (skilled) Principal Applicant Onshore (UC 457) visa, at the time she applied for the Student visa.

19. The relevant subclass of visa is Subclass 572. The criteria for the grant of a Subclass 572 visa are set in in Part 572 of Schedule 2 of the Regulations. Relevantly to this case they include cl. 572.227. Broadly speaking, for visa applications made in Australia, it requires that if a person made an application for a Student (Temporary) (Class TU) Subclass 572 visa in Australia, and the applicable assessment level is an assessment level other than assessment level 1, and at the time of the application the applicant was the holder of certain specified visas, then the applicant must establish ‘exceptional reasons’ for the grant of the visa.

20. The issue in this case is whether or not the primary applicant has established exceptional reasons for the grant of the visa, and this is a question of fact for the decision maker.

21. ‘Exceptional reasons’ in this context are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an application that is not subject to the restriction in the criteria. A visa should not be granted a visa unless reasons could be positively identified which would justify the grant, and the reasons must be capable of being described as ‘exceptional’. The term ‘exceptional reason’ is not defined in the legislation. The Tribunal notes the judgment of Kim v MIAC [2008] FCMA 1577, where the court noted that when determining whether ‘exceptional reasons’ have been established, the decision-maker must assume that the visa applicant ‘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.’[1]

    [1] KIM v MIAC [2008] FCMA 1577 (Smith FM, 27 November 2008) at [30], undisturbed on appeal in KIM v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

22. The Department provides guidance to its officers through the Procedures Advice Manual (PAM). These guidelines are not binding on the Tribunal but regard may be had to them when they’re not in conflict with the legislation.

23. Under PAM3 ‘exception 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 benefit to Australia’)

    ·the applicant is a dependent of a departing temporary resident and has been studying in Australia in Australia for at least one year and wishes to complete his or her current course or undertake further studies.

    ·the applicant held a Class TU visa in Australia when they were granted a specified temporary visa and now wishes to undertake further study or continue their course of study.

    ·The applicant previously held a student visa and now holds a Subclass 676 (visitor) visa granted under s.351 (Ministerial Intervention).

24. The Tribunal has taken into consideration the evidence of the primary applicant and submissions made on her behalf as reasons advanced to establish exceptional reasons in this case. Upon considering all this material, the Tribunal is not satisfied on the evidence before it that the applicants have established that there are exceptional reasons.

25. It is accepted that the primary applicant has engaged in her study and has made progress through her courses however, the Tribunal considers that this is the basic requirement of the visa and is not of itself exceptional

26. The primary applicant has not demonstrated that she could not apply offshore for the visa and then return to complete her proposed studies. It is accepted that this process carries additional expense, however this would be the normal circumstances for any other applicant in the situation of the primary and secondary applicant and it is not considered to be an exceptional reason. The Tribunal was also not persuaded, in the absence of corroborating evidence that the inadequacy of advice from the primary applicant’s agent gave rise to exceptional circumstances.

27. The Tribunal has considered the submissions of the primary applicant regarding the potential for her uncle’s business to expand and distribute clothing in Australia, add to the Australian economy, and create jobs. However, in the absence of any set plans the proposal was considered speculative and not an exceptional reason.

28. The payment of student fees is something that all applicants on student visas incur and the Tribunal does not consider this to be exceptional.

29. The Tribunal was also not persuaded that the opportunity for the primary applicant to speak positively about her experiences as a student upon her return to Thailand to other prospective students would have a significant impact upon bilateral relations between the two countries and would be regarded as an exceptional reason.

30. It is accepted that the bankruptcy of the secondary applicant’s employer was a circumstance outside the control of both applicants. However the primary applicant had not engaged in her proposed study until after these circumstances arose. This event has not disrupted her course of study; it is not the case that she is seeking to continue studies commenced prior to the change in the secondary applicant’s employment circumstances.

31. The Tribunal is also not persuaded that claims of previous volunteer work by the primary applicant are an exceptional reason.

32. After considering all the evidence before it, the Tribunal is not satisfied that the reasons advanced by the applicants, either individually or cumulatively establish that there are exceptional reasons for the grant of the visa. The primary applicant therefore does not establish the criterion in cl. 572.227 of Schedule 2 to the Regulations. Therefore the decision to refuse her a Subclass 572 visa must be affirmed.

    Conclusion

33. The Tribunal has found that the applicant does not meet an essential requirement for the grant of the visa. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the primary applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the primary applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the primary applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

34. As the Tribunal has found that the primary applicant in this case has not satisfied the requirements subdivision 572.227, it follows that the secondary applicant, who has applied as a member of the primary applicant’s family unit, cannot be a visa under cl 572.322.

    DECISION

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

    Penelope Hunter
    Member