Senibuli (Migration)

[2017] AATA 2452

Senibuli (Migration) [2017] AATA 2452 (21 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anare Senibuli

CASE NUMBER:  1614711

DIBP REFERENCE(S):  BCC2016/1862952

MEMBER:Tim Connellan

DATE:21 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Class TU) Subclass 572 Vocational Education and Training sector visa.

Statement made on 21 November 2017 at 3:23pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training 3 Higher Education Sector visa – Applicant was on a student visa – Intends to stay and study – Education will improve bi-lateral relations – Reasons submitted did not constitute exceptional reasons

LEGISLATION
Migration Act 1958 ss 65, 338(2), 347
Migration Regulations 1994 Schedule 2 cls 572.211, 572.227, 572.227A

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 24 August 2016 to refuse to grant the visa applicant, Mr Anare Senibuli a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 May 2016 listing his intended studies as a Certificate III in Bricklaying and Blocklaying.  At the time of application Mr Senibuli was in Australia as the holder of a Tourist (subclass 600) visa and was therefore required to establish exceptional reasons for the grant of a student visa.

3. In support of his application Mr Senibuli provided a statement headed Initial student Visa while in Australia - how does it benefit Australia?  In that statement he made a number of claims including that it would be beneficial for him to be granted a visa “as the community needs bricklayers”, and further:...   Australia would benefit more once I received my certificate. I have plans to live and work in Australia as a fully qualified and experienced bricklayer .......  it would only be a matter of time before I build my own bricklaying business and help create employment for many Australians .... It is my dream to bring my family over and have them share in the opportunities of better health, education and overall living standards.

4. The delegate was not satisfied Mr Senibuli had established exceptional reasons for the grant of a visa and therefore did not meet clause 572.227, consequently the application was refused.

5. Mr Senibuli applied to the Tribunal for review of the delegate’s decision.

6. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that Mr Senibuli has made a valid application for review under s.347 of the Act.

   RELEVANT LAW

   To be eligible for the grant of a subclass 572 Vocational Education and Training 3 Higher Education Sector visa an applicant must satisfy clause 572.227 which relevantly states:

   If:

   (a)      the application was made in Australia; and
   (b)      subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and
   (c)      at the time of application, the applicant met the requirements of clause 572.211:

   (i)      as the holder of a visa of one of the following classes or subclasses:

   (A)      Border (Temporary) (Class TA);
   (C)      Cultural/Social (Temporary) (Class TE);
   (D)      Educational (Temporary) (Class TH);
   (E)      Electronic Travel Authority (Class UD);
   (IA)    Maritime Crew (Temporary) (Class ZM);
   (J)      Medical Practitioner (Temporary) (Class UE);
   (K)      Retirement (Temporary) (Class TQ);
   (LA)   Superyacht Crew (Temporary) (Class UW);
   (N)      Temporary Business Entry (Class UC);
   (NA)  Subclass 400 (Temporary Work (Short Stay Activity));
   (NB)  Tourist (Class TR);
   (NC)  Visitor (Class TV);
   (O)    Working Holiday (Temporary) (Class TZ);
   (P)      Temporary Work (Long Stay Activity) (Class GB);
   (Q)      Training and Research (Class GC);
   (QA)      Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;
   (R)      Temporary Work (Entertainment) (Class GE);
   (S)      Special Program (Temporary) (Class TE);
   (T)      Subclass 600 (Visitor); or

   (ii)      as the holder of a special purpose visa; or
   (iii)      as the holder of a visa of one of the following subclasses:

   (A)      Subclass 303 (Emergency (Temporary Visa Applicant));
   (B)      Subclass 427 (Domestic Worker (Temporary) — Executive);
    (BA)      Subclass 485 (Temporary Graduate);
   (C)      Subclass 497 (Graduate — Skilled); or

   (iv)      as a person:

   (A)      who was not the holder of a substantive visa; and
   (B)      who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);

   the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

   THE HEARING

7. Mr Senibuli attended a Tribunal hearing by telephone on 21 March 2017 to give evidence and present arguments relating to the issues in his case. He was accompanied by his agent.

8. The Tribunal discussed the requirement for an applicant to establish exceptional reasons and reviewed Mr Senibuli’s written submission.

9. The Tribunal noted that the delegate had found that the reasons submitted did not constitute exceptional reasons and asked whether Mr Senibuli had any further evidence to add or anything else he wanted considered.

10. Mr Senibuli said he had lodged the application without professional support and would like the Tribunal to take into account the fact he was close to completing his course which was scheduled to finish in July. He said he was keen to complete the course and to return home with his new skills.

11. The Tribunal observed that was a very different prospect to his statement lodged with the application in which he spoke of his intention to establish a business in Australia and bringing his family to Australia to enjoy better education, health facilities and standard of living. The Tribunal asked why he had changed his mind. He said at the time of application he did not understand the details of what they wanted.

12. The Tribunal questioned whether he had been advised that student visas are granted for applicants to come to Australia temporarily. He responded that was not the case.

13. The Tribunal said it had difficulty understanding why he had changed his mind from when he lodged his application and made a statement that he wished to bring his family to Australia and establish a business here.

14. Mr Senibuli told the Tribunal he had family in Australia as his father’s brother lived in Carlton and an aunt of his wife lived in Rowville.

15. The Tribunal told Mr Senibuli while it understood he was keen to complete his studies, it did not believe that the evidence presented constituted exceptional reasons for the grant of a visa.

16. The Tribunal observed that since October 2014 Mr Senibuli had visited Australia on four separate occasions on subclass 600 visitor visas and had stayed for almost 3 months on each occasion meaning he had spent significantly more time in Australia than not. The Tribunal suggested this might seem like he was using visitor visas and now applying for a student visa to maintain residence in Australia.

17. He said he had simply used the visitor visas to visit relatives.

18. Mr Senibuli’s agent provided an oral submission stating that he had a written submission which he did not intend to read but to provide the Tribunal for consideration.

19. He stated his belief the decision-maker had erroneously interpreted an improvement in bilateral relations as something that needed to be significant. He stated it was his belief that any improvement in relations, regardless of how small, even tiny, satisfied the definition of being an exceptional reason for the grant of the visa. Thus he argued, one student studying In Australia learning skills he or she can take back for the betterment of his local community builds goodwill and trust between Australia and the foreign national, his local community and his nation. This he said was an improvement in bi-lateral relations.

20. Mr Senibuli’s migration agent provided the Tribunal with a substantial submission which repeated his oral evidence at the hearing that he believed the primary decision maker refused the application on the erroneous conclusion of the law and policy. He believed the delegate had been deliberately obtuse by being wilfully blind to the improvement – however small – that the education of even one such an foreign national contributes to improvement in bilateral relations.(sic)

    FINDINGS AND REASONS

21. To be eligible for the grant of a subclass 572 student visa, an applicant must satisfy cl.572.227 which requires an applicant applying in Australia while holding a subclass 600 visa to provide exceptional reasons for the grant of a student visa.

22. The only reason provided by Mr Senibuli was that he was keen to complete his studies in Australia. The Tribunal does not accept that this constitutes exceptional reasons for the grant of a subclass 572 visa.

23. The tribunal does not accept the submission of Mr Senibuli’s agent that a student studying in Australia and returning home with new skills satisfies the definition of an improvement in bilateral relations.

24. In the circumstances, the Tribunal finds Mr Senibuli has failed to provide evidence of exceptional reasons for the grant of a Subclass 572 visa and therefore does not satisfy the requirements of cl.572.227.

25. Having found he does not satisfy cl.572.227 which is a pre-requisite for the grant of a Subclass 572 visa, the Tribunal affirms the decision under review.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Student (Class TU) Subclass 572 Vocational Education and Training sector visa.

    Tim Connellan

    
    

    Member