Wu (Migration)

[2017] AATA 618

Wu (Migration) [2017] AATA 618 (21 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Meng Wu

CASE NUMBER:  1615447

DIBP REFERENCE(S):  BCC2016/2192504

MEMBER:Mary-Ann Cooper

DATE:21 April 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 21 April 2017 at 11:11am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 – Student visa ceased – Did not depart – Series of temporary visas – 18 month rental tenancy agreement – Medical condition – No exceptional circumstances

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 – cl.573.211 (1) and (2), 573.227, 573.227 (a) – (c), 573.227A

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 2 September 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 27 June 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. 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.573.211. Broadly speaking, for visa applications made in Australia, it requires the applicant to be the holder of a substantive visa or to have made the visa application within 28 days of the last substantive visa ceasing.

4. In the present case, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of his enrolment in a Bachelor of Business.

5. 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 evidence of exceptional reasons for the grant of the visa.

6. The applicant appeared before the Tribunal on 12 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Exceptional reasons

10. The Regulations relevantly provided as follows:

    573.211

    (1)      If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

    (2)      An applicant meets the requirements of this subclause if the applicant is:

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

    …..

    (xvc)      Subclass 600 (Visitor);

    573.227

    If:

    (a)the application was made in Australia; and

    (b)subject to clause 573.227A, 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:

    …..

    (T)     Subclass 600 (Visitor);

    …..

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

    573.227A

    For paragraph 573.227(b), the highest assessment level does not include assessment level 1.

11. The delegate’s decision, a copy of which was provided with the review application, records that the applicant is subject to Assessment level 3 and is required to demonstrate exceptional reasons for the grant of the student visa onshore. The delegate noted that on 30 June 2016 the applicant was requested to provide information regarding exceptional reasons. The decision further records that on 1 July 2016 a response was received in which the applicant stated that he was suffering from sinusitis and had been unable to travel so had been required to lodge his application onshore. He provided a medical certificate dated 25 June 2016 stating that he was unfit to travel. The delegate accepted the medical certificate and that the applicant had been unable to fly but considered that he should have applied for an appropriate visa in these circumstances. Applying departmental policy, the delegate found that, although the applicant had previously been granted a Student visa, he was not granted his previous Visitor visa while the holder of a student visa and therefore the policy did not apply to his circumstances so as to constitute exceptional reasons. The delegate was not satisfied that exceptional circumstances existed for the grant of the visa and refused the application.

12. Prior to the hearing the applicant provided a statement outlining his medical condition (sinusitis) and claiming this was the reason he applied for his student visa onshore. His agent also provided a submission to the Tribunal. It outlined the history of his study and why he wished to continue studying and submitted that the applicant’s inability to depart because of his illness was an exceptional reason as was the fact that he had previously held a student visa.  It was further claimed as follows:

    On 29 April 2016, the applicant applied a subclass 600 (Visitor) visa and was granted a bridging visa A, he then applied for the subclass 573 student visa afterwards on 27^th June 2016. As listed in cl.573.211(i), the subclass 600 (Visitor) visa was a class of temporary residence visa, therefore the applicant has met the intention of PAM3 as he was holding a bridging visa for a short period of time before he was granted the visitor visa onshore. Most importantly since a former student visa holders (sic) who applied for, and were granted subclass 485 (Skilled Graduate) temporary residence visas, and then applied for another student visa in Australia did not have to demonstrate ‘exceptional reasons’, thereby it was inconsistent and unfair to require the applicant to state his ‘exceptional reason’ for his subclass 573 (Higher Education Sector) student visa.

13. At the hearing the applicant confirmed that he had previously completed a Bachelor of Business and a Master of Professional Accounting in Australia while on student visas. He said he initially applied for a Visitor visa because his classes finished in July 2015 but his graduation ceremony was not held until the end of October. He said he applied for further visas because he wanted to relax and tour Australia. When asked where he had travelled, he responded vaguely, saying he went to  ‘some places’ in Melbourne, Adelaide and Tasmania. He said that while he was touring his family members suggested he pursue further professional studies in Australia before returning to China for employment. He acknowledged that he held 4 consecutive Visitor visas in Australia and the Tribunal asked why he had not departed in accordance with the expiry date of last of them and applied offshore for his student visa. He responded that he had applied for his courses at Cambridge[1] while he was ‘on tour’ and the offer came through, so he had commenced studies. The Tribunal observed that he claimed in his submissions to the Department that he had applied onshore because he was ill and had been unable to depart Australia. He said that at that time his studies had already commenced. He realised he ought to leave however he was then suffering from sinusitis and his doctor advised him not to depart. The Tribunal queried a document he had provided which indicated that he had signed an 18 month property lease on 5 March 2016, while on a Visitor visa which ceased on 29 April 2016. It observed that this indicated he had never intended to depart Australia but had lodged the student visa application in order to prolong his stay. He acknowledged that he did have the intention to study further and, as he had to leave his then residence, he needed somewhere to live. The Tribunal queried why the address given on his visa application of 27 June 2016 was different to the address in the lease of 5 March 2016. His agent responded that they had completed the application and had mistakenly inserted his address from an earlier application. She did not respond to the Tribunal’s observation that the applicant had signed the form, declaring that all the information in it was true and correct.

    [1] An Advanced Diploma of Translating and a Bachelor of Business (Marketing).

14. The Tribunal asked the applicant to identify the exceptional reasons that he considered warranted the grant of the visa. He asked that his agent address this issue.

15. The agent stated that she relied on the written submissions. The Tribunal noted that the submissions relied in part on the applicant’s medical condition as an ‘exceptional reason’ on the basis that it had required him to remain in Australia and lodge his student visa application onshore. It noted that the applicant’s evidence at hearing did not support this submission. That is, he had told the Tribunal that he had already applied for and commenced his study when he made the application. In addition he had signed a property lease. This suggested he had no intention of departing at the expiry of his visitor visa. The agent responded it was both reasons.

16. When asked to clarify, she acknowledged that the applicant’s circumstances did not meet the guidelines but maintained that, because he could not travel, his illness constituted an exceptional reason justifying the grant of the visa as did the unfairness of allowing subclass 485 visa holders to apply for another student visa and not subclass 600 visa holders.

17. The Tribunal finds that the applicant is applying to study a course within the 573 stream and that he made the student visa application in Australia as the holder of a subclass 600 (Visitor) visa. He therefore met the requirements of cl.573.211 at the time of application. As the holder of a passport of China he is subject to assessment level 3, the highest relevant assessment level and which is higher than assessment level 1 (r.573.227A). He therefore satisfies cl.573.227(a) and (b). To meet cl.573.227(c) he must establish exceptional reasons for the grant of the Subclass 573 visa.

18. 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. 

19. 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…. 

20. 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.

21. 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)[2].

    [2] PAM3 - MIGRATION REGULATIONS - OTHER > Repealed legislation - 1/07/2016 repealed visas - Student visas - GenGuideG- Visa application and related procedures

22. In relation to former student visa holders the policy further specifically provides:

    Former student visa holder or temporary visa holder

    If the applicant holds a “temporary residence” visa, under policy, exceptional reasons exist if they:

    • have previously held a student visa and
    • while still in Australia as the holder of the student visa, were granted a class of “temporary residence” visa listed in 57x.211(2) and
    • now wish to change back from “temporary residence” status to a student visa to undertake further study.

    Exceptional reasons also exist if an applicant holds:

    • a TH-442 Occupational Trainee visa
    • a TH-419 Visiting Academic visa or
    • a GC-402 Occupational Trainee stream visa or
    • a GC-402 Research stream visa

    and wishes to change to a student visa to undertake further study.

23. 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.

24. The applicant has previously held a student visa however he had applied for and been granted 4 Visitor visas since his last student visa expired. That is, as the delegate found, he did not hold a student visa when he applied for his last Visitor visa, but had held the third Visitor visa granted since the cessation of his student visa. As the Tribunal understands the policy, it applies where a student visa holder has been granted a Visitor (or other listed temporary visa) and then seeks to return to study. It does not apply where there have been a series of temporary visas granted and the applicant later wishes to return to study.

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 he is using the student visa programme to extend his stay in Australia. This is supported by the fact he regressed in his study level and is undertaking a second Bachelor of Business degree (albeit in the different area). Furthermore, on 5 March 2016, while the holder of a Visitor visa due to expire on 29 April 2016, he signed an 18 month rental property lease. In this context the Tribunal places little weight on the applicant’s medical condition as constituting an exceptional reason for the grant of the visa. His sinusitis condition appears to have little bearing on his decision to apply for another student visa onshore because, as he told the Tribunal, he had already applied for and enrolled in his then course.

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 he is required to apply offshore for the visa however he has now been in Australia since July 2009 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 little in the evidence of the applicant at hearing that indicated any benefit to Australia if he was granted the visa. On the contrary his evidence centred around the benefits to him of remaining so he could complete another course. Further, as recorded in the delegate’s decision, there is no claim or evidence that he 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. Having regard to the submissions made in relation to subclass 485 visa holders, the Tribunal does not consider there is any inconsistency with the law or policy. Both subclass 600 and 485 visas are listed in cl.573.211(2), therefore the policy applies equally to them.

29. While the Tribunal accepts (as noted above) that the refusal of this visa application may disrupt the applicant’s plans and his ability to apply for another visa onshore, it does not consider these constitute exceptional reasons to grant the visa, given that he 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.  

30. 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.

    CONCLUSION

31. 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

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

    Mary-Ann Cooper
    Member