Sardar (Migration)

[2017] AATA 1598

Sardar (Migration) [2017] AATA 1598 (30 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Abdul Gafur Sardar

CASE NUMBER:  1608345

DIBP REFERENCE(S):  CLF2016/5961

MEMBER:Penelope Hunter

DATE:30 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Student (Temporary) (Class TU) visa.

Statement made on 30 August 2017 at 5:09pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Exceptional reasons for visa grant – Application made within Australia – Streamlined application – Course enrolment at time of application – No exceptional reasons

LEGISLATION

Migration Act 1958, ss 55, 65, 359AA

Migration Regulation 1994, Schedule 2, cl 572.227, r 1.40A, r 1.41

CASES

Kim v MIAC [2008] FCMA 1577
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32
KIM v MIAC [2009] FCA 161

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 18 May 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 January 2016. At the time of lodgement, Class TU 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 he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. At the time of lodgement, the applicant was the holder of a Visitor (subclass FA - 600) visa. Where the applicant is the holder of a Visitor visa when making an application for a Class TU visa in Australia he or she must, in most cases, establish exceptional reasons for the grant of the visa (see cl.570.227, cl.571.227, cl.572.227, cl.573.227, cl.574.227, cl.575.227 and cl.580.227 of the Regulations). For all but the Subclass 580 (Student Guardian) visa this requirement does not apply to applicants where they use a passport relevantly prescribed for Assessment Level 1 under r.1.41 (see cl.570.227A, cl.571.227A, cl.572.227A, cl.573.227A, cl.574.227A and cl.575.227A of the Regulations).

4. On 10 March 2016, in response to requests from the Department the applicant submitted a further Confirmation of Enrolment (CoE) from Strathfield College in an Advanced Diploma. In addition submissions were advanced on behalf of the applicant that his application was a streamlined application due to his new CoE in an Advanced Diploma course.

5. The delegate did not accept that the applicant met the streamlined visa processing provisions of the Regulations as the applicant did not provide a CoE demonstrating that he was an eligible VET student at the time of application.

6. The applicant in this case holds a passport from Bangladesh.  The delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in a General English course and a Diploma of Business Administration. The assessment level for a holder of such a passport for Subclass 572 is assessment level 3: IMMI 14/014. 

7. The delegate refused to grant the visa on the basis that the applicant did not establish exceptional reasons for the grant of the visa as required by cl.572.227 of Schedule 2 to the Regulations.

   Relevant Law

   Streamlined Processing Arrangements

8. For applications made on or after 24 March 2012 applicants seeking to undertake study at university and who meet the definition of ‘eligible higher degree student’, ‘eligible university exchange student’ or ‘eligible non-award student’ are subject to streamlined processing arrangements, particularly in relation to the genuine student criterion. For applications made on or after 23 November 2014, applicants seeking to undertake an advanced diploma in a vocational education and training course who meet the definition of ‘eligible vocational education and training student’ are also subject to streamlined processing arrangements.

9. The heading to Clause 572.21 of the Regulations sets out that the criteria is to be satisfied at the time of application. Applicants meeting the definition of ‘eligible VET student’ for a Subclass 572 visa, must have a CoE in each course of study for which they meet that definition.[1]

   [1] See cl.572.212, 573.212, 574.212 and 575.212 of Schedule 2 to the Regulations

10. An ‘eligible vocational education and training student’ (eligible VET student) is an applicant for a Subclass 572 visa where:

    • the applicant is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector;
    • the principal course of study is provided by an eligible education provider; and
    • if the applicant proposes to undertake another course before, and for the purposes of, the principal course, the applicant is also enrolled in that course, and that course is provided by the eligible education provider or an educational business partner.[2]

    [2] See cl.572.111, as amended by SLI 2014, No.163 for applications made on or after 23 November 2014.

11. Amendments to cl.573.223(1A), 574.223(1A) and 575.223(1A), applicable to visa applications made on or after 22 March 2014, require that the applicant is an eligible higher degree or non-award student at time of application and time of decision.[3] Clause 572.223(1A) as introduced for visa applications made on or after 23 November 2014 requires that the applicant is an eligible VET student at time of application and time of decision.

    Exceptional Reasons

    [3] SLI 2014, No.30.

12. It is a visa criterion for certain applicants for a Student (Temporary) (Class TU) visa who apply in Australia that they must establish ‘exceptional reasons’ for the grant of the visa.   Practically speaking, where this criterion applies, an applicant cannot enter Australia on another type of temporary visa (i.e. a temporary visa other than a student visa) and then obtain a Class TU visa on the basis of studying in Australia unless he or she establishes exceptional reasons for the grant of the visa.

13. The ‘exceptional reasons’ for grant criterion only applies where:

    • the visa application was made in Australia
    • the applicant is subject to assessment levels 2,  3, 4, or 5 , i.e. the applicant is not subject to streamlined visa processing arrangements  and
    • at the time of application, the applicant was either:

    a.    the holder of a specified temporary visa; or

    b.    if the applicant did not hold a substantive visa, immediately before ceasing to hold a substantive visa, the applicant held a specified visa.

14. The specified temporary visa classes and subclasses for student visa applications include Subclass FA 600 (Visitor) visa.

15. The term ‘exceptional reasons’ is not defined in the Act or Regulations. Exceptional reasons’ in this context are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an applicant that is not subject to the restriction in the criteria. An applicant 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 has had regard to 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.’[4]

    [4] 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).

16. The Department provides guidance to its officers through the Procedures Advice Manual (PAM). These guidelines are not binding upon the Tribunal but are a relevant consideration when determining what constitutes “exceptional reasons”. Current departmental guidelines provide the following instances where ‘exceptional reasons’ may be established:

    • 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 is applying for their first student visa to complete her or his 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).

    Application for Review to the Tribunal

17. The applicant applied the Tribunal on 8 June 2016 for review of the delegate’s decision.

18. The applicant appeared before the Tribunal on 24 May 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent.

19. The applicant advised the Tribunal that he was not studying. He had undertaken his general English course; however he had not achieved the requisite score in his IELTS test to proceed with his enrolment in his Diploma of Business Administration. Pursuant to the provisions of s. 359AA of the Act the Tribunal put to the applicant for comment PRISM records which documented that his enrolment in the proposed Diploma of Business Administration and the Advanced Diploma had been cancelled. The applicant chose to respond immediately and advised that he was unaware of the cancellation. The applicant then sought, and the Tribunal granted to the applicant, a week to provide a further CoE.

20. The Tribunal also discussed with the applicant whether he had any exceptional reasons for the grant of the visa. The applicant told the Tribunal that he had qualifications in social science however he had previously worked for a business that exported ready-made garments. He claimed that when he came to Australia that his English was not that good, and with his proposed qualifications he would have a better career. The applicant claimed that one of his former employers had supplied Australian companies such as Big W. The business no longer had this supply contract and the applicant confirmed he also no longer worked for the company. The applicant claimed that with his proposed qualifications when he returned to Bangladesh they would have incentive to re-employ him. The Tribunal asked the applicant why he could not return to Bangladesh and apply for a student visa offshore, and he responded there was nothing preventing him from doing so, but he had received advice that he could make the application while in Australia.

21. On 31 May 2017, the Tribunal received further submissions and documents from the agent of the applicant. The documents included a CoE in an Advanced Diploma of Leadership and Management at Institute of Business and Management Australia with course dates from 26 June 2017 to 21 December 2018, a letter of reference from Union Garments Ltd dated 29 May 2017 and a letter of reference from Skylink Fashion Ltd dated 30 May 2017.

22. In submissions to the Tribunal the applicant’s agent relied upon section 55 of the Act and argued that there was an obligation upon the Tribunal to consider up to date information. Furthermore it was argued in accordance with the decision of Berenguel v Minister for Immigration and Citizenship [2010][5] that the Minister may have regard to up to date information and that this reasoning should be extended to the provisions of clause 572.21 of the Regulations to provide for the acceptance and consideration of evidence of subsequent enrolment when making a decision by the Tribunal. Additionally it was submitted that the Federal Court decision in Waensila v Minister for Immigration and Border Protection [2016][6] where the Court held that compelling reasons were not limited to those in existence at the time of application and further the text of the relevant clause [820.21] did not contain those clear words. In combination the agent for the applicant claimed that the reasoning from Berenguel and Waensila should be considered with all the information provided by the applicant regardless of whether that information was provided at the time of application or the time of decision. The submissions also referred to Tribunal matter number 1509893 in which it was claimed the Tribunal considered similar issues.

    [5] [2010] HCA 8

    [6] [2016] FCAFC 32

23. In further submissions it was argued that the applicant met the requirement for a Subclass 573 streamline visa considering all the documents provided by the applicant, as the CoE provided by the applicant on 31 May 2017 constituted a material change at the time of decision and the provisions of clause 573.227 of the Regulations did not apply to the applicant. In the alternative the applicant had submitted letters of reference which is was claimed provided compelling reason required under the Regulations for the grant of the visa.

    FINDINGS AND REASONS

    Streamlined visa

24. It was put to the applicant at the hearing, and the applicant conceded, that at the time of his application, on 22 January 2016, the applicant was not enrolled a principal course of study for the award of an advanced diploma in the vocational education and training sector.

25. The Tribunal has considered all of the information submitted by the applicant and it is accepted that as at 31 May 2017, the applicant has provided evidence to the Tribunal that he has obtained a CoE in an Advanced Diploma of Leadership and Management with course dates from 26 June 2017 to 21 December 2018. This is a course, according to the CoE, in the vocational education and training sector. The applicant has not submitted evidence of enrolment in the higher education sector. The Tribunal considers the submissions of the agent insofar as they relate to the provisions of clause 573 of the Regulations in relation to the similar provisions in clause 572 to Schedule 2 of the Regulations.

26. The Tribunal has reviewed the decision of in Berenguel and considers that it can be distinguished as authority for the consideration of identical or near identical criteria while having regard to their statutory context and purpose. Relevantly for the applicant the enrolment in the requisite course of study is not merely a heading contained at clause 572.21 of Schedule 2 but also expressly set out as a requirement in clause 572.223 [1A] that the applicant is, and was at the time of application, and eligible vocational education and training student.  The text of the clause contains clear words that it is a time of application criteria. This means that an applicant subject to these provisions cannot access the streamlined ‘genuine student’ criterion by changing course and/or course provider after the time of application.

27. Further, the Tribunal is not satisfied that the relevant provisions of clauses 572.21, 572.212 or 572.223(1A) are ameliorating provisions or call for the exercise of discretion consistent with clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations which was considered by the Federal Court in Waensila.

28. The Tribunal has also reviewed the previous Tribunal decision, 1509893, referred to in the agent’s submissions, however it considers that this matter may also be distinguished upon its facts. The applicant in that matter was an applicant for a 573 visa and the Tribunal found that the applicant was an eligible higher education student as required by clause 573.223(1A) at the time of her application.

29. As the applicant was not enrolled in a principal course of study for the award of an advanced diploma at the vocational education and training sector at the time of application he did not meet the definition of an eligible vocational education training student for a subclass 572 visa and the streamline visa provisions do not apply. The applicant must therefore meet the provisions of clause 572.227 to be eligible for the visa.

    Exceptional reasons

30. The Tribunal has taken into consideration the evidence of the applicant, together with the letters of reference and submissions made on his 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 applicant has established that there are exceptional reasons for the grant of the visa.

31. It is accepted that the applicant may benefit professionally from qualifications in Business and with enhanced English skills, however the same could be said for many individuals in the position of the applicant and is not of itself exceptional. 

32. The applicant has not demonstrated that he could not apply offshore for the visa and then return to complete his proposed studies. It is accepted that this process carries additional expense, however this would be the normal circumstances for any other individual in the situation of the applicant and it is not considered to be an exceptional reason.

33. The Tribunal has also considered the circumstances of the applicant, particularly that had he obtained enrolment in an Advanced Diploma he would have perhaps been eligible for the streamline visa processing provisions. It is not considered that the inadequacy of his initial advice or deficits in his original application is an exceptional reason.

34. The Tribunal has considered the evidence and the letters of reference submitted by the applicant regarding his former employment in the garment industry. It is accepted that the applicant formerly worked in the industry and that one of these employers may have exported clothing to Australia. However the applicant, on his evidence to the Tribunal, is not currently employed by either business. Although the Tribunal accepts that if the applicant completes further business qualifications he has been offered potential employment, and that this could lead to economic opportunities for Skylink  Fashion Ltd in Australia, in the absence of any set plans the proposal was considered speculative and not an exceptional reason. There is no evidence of any actual trade ties with Australia, nor the actual position that the applicant will be provided once he completes his education, or how these economic opportunities will eventuate.

35. After considering all the evidence before it, the Tribunal is not satisfied that the reasons advanced by the applicant, either individually or cumulatively establish that there are exceptional reasons for the grant of the visa. The applicant therefore does not establish the criterion in clause 572.227 of Schedule 2 to the Regulations.

36. For the reasons given above, the Tribunal also finds that the applicant does not meet the requirements for a student visa of another subclass. Accordingly, the decision under review must be affirmed.

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Penelope Hunter

    
    

    Member