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1008998 [2012] MRTA  1614  (6 June 2012)

Last Updated: 25 June 2012

1008998  [2012] MRTA 1614  (6 June 2012)

DECISION RECORD

APPLICANT: Ms Hongxiang He

MRT CASE NUMBER: 1008998

DIAC REFERENCE(S): CLF2010/75690

TRIBUNAL MEMBER: Christopher Smolicz

DATE: 6 June 2012

PLACE OF DECISION: Adelaide

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

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 and Citizenship 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 to the Department of Immigration and Citizenship (the Department) for a Student (Temporary) (Class TU) visa on 3 June 2010. The delegate decided to refuse to grant the visa on 23 September 2010 and notified the applicant of the decision and her review rights by letter dated 23 September 2010.
3. The delegate refused the visa application as the applicant did not satisfy cl.580. 222 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant did not satisfy cl.580.222(3) because the applicant’s son had turned 18 years old on 11 June 2010 and the applicant’s reasons for wanting to stay in Australia with her son did not amount to exceptional reasons.
4. The applicant applied to the Tribunal on 14 October 2010 for review of the delegate’s decision. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

580.222 Criteria to be satisfied at time of decision

(1) The applicant meets the requirements of subclause (2), (3) or (4).

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

(a) the nominating student has not turned 18; and

(b) the applicant is able to:

(i) provide appropriate accommodation and support for the nominating student; and

(ii) provide for the general welfare of the nominating student; and

(c) the applicant is either:

(i) a parent of the nominating student or a person who has custody of the nominating student; or

(ii) a person who:

(A) is a relative of the nominating student; and

(B) has turned 21; and

(d) if subparagraph (c)(ii) applies — the nomination of the applicant is supported in writing by:

(i) a parent of the nominating student; or

(ii) a person who has custody of the nominating student.

(3) The applicant meets the requirements of this subclause if:

(a) the nominating student has turned 18; and

(b) the Minister is satisfied that there are exceptional reasons why the nominating student needs the applicant to reside with the nominating student in Australia; and

(c) the applicant is able to:

(i) provide appropriate accommodation and support for the nominating student; and

(ii) provide for the general welfare of the nominating student; and

(d) the applicant is a person who:

(i) is a relative of the nominating student; and

(ii) has turned 21.

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

(a) the Minister is satisfied that the grant of the visa to the applicant will significantly benefit the relationship between the government of Australia and the government of a foreign country; and

(b) the applicant has turned 21; and

(c) if the nominating student has not turned 18 — the nomination of the applicant is supported in writing by:

(i) a parent of the nominating student; or

(ii) a person who has custody of the nominating student.

5. The Department’s policy states that:

For 580.222(3), if the nominating student is 18 or older:

• there must be exceptional reasons why the nominating student requires the Student Guardian visa applicant to reside with them and

• the applicant must be a relative at least 21 years old and of good character.

7.2 Exceptional reasons must exist

Under 580.222(3)(b), if the nominating student is 18 years or older, the subclass 580 applicant must provide evidence of exceptional circumstances requiring them to accompany and reside with the nominating student in Australia.

Exceptional circumstances are not defined in legislation. Under policy, exceptional circumstances may include, but are not limited to, evidence that there are:

• well-recognised and strong religious or cultural grounds requiring the student to have a relative as a chaperone at all times in their home country or

• the student requires a carer on medical grounds (and has a carer in their home country).

6. The issue before the delegate was whether there were exceptional reasons why the applicant’s son needs the applicant to reside with him in Australia.

CLAIMS AND EVIDENCE

7. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
8. On 3 June 2010 the applicant lodged with the Department a Nomination of Student guardian (Form 157) and an Application for a Student Guardian visa (Form 157G). Form 157 was completed by the applicant’s son, Duan Jie Pu born on 11 June 1992, nominating the applicant as his guardian. In Form 157G the applicant declared that she was a citizen of China born on 15 June 1967.
9. The applicant provided a signed statement, dated 1 June 2010, in support of her application. The applicant’s submission can be summarised as follows:

• Her son would feel isolated if she did not accompany him to Australia.
• Since her son was born, he has discussed his life problems with her and she would provide him with advice.
• Her son had been dependent economically and psychologically on her.
• Her son has almost turned 18 years old and this is a critical period in his development.
• She accompanies her son to school every day and takes care of his accommodation needs so her son can concentrate on his studies. In the future her son wants to study at university in Australia.

10. The delegate found that the applicant did not satisfy cl.580.222(3) because the applicant’s son had turned 18 years old on 11 June 2010 and the applicant’s reasons for wanting to stay in Australia did not amount to exceptional reasons.

Review application

11. On 14 October 2010 the applicant applied to the Tribunal for a review of the delegate’s decision. A copy of the delegate’s decision was included in the application which was submitted to the Tribunal.
12. On 18 October 2010 the Tribunal wrote a letter to the applicant acknowledging her review application. The letter invited the applicant to provide material or written argument for the Tribunal to consider.
13. On 2 April 2012 the Tribunal sent a letter by registered post to the applicant’s nominated authorised recipient address advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 2.00 pm on 29 May 2012. The letter advised the applicant that if she failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable her to appear before it.
14. The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear for hearing.
15. The Tribunal considered whether it should take any further action before proceeding to a decision on the review. Having regard to the number of opportunities the applicant has not taken to present any evidence in support of her claims for the visa, the Tribunal concluded that it will proceed to making a decision in accordance with s.362B of the Act without taking any further action. The Tribunal has therefore determined this matter based upon the evidence before it.

FINDINGS AND REASONS

16. The only claims made by the applicant are with respect to the Subclass 580 Student Guardian visa. The Tribunal finds that at the time of this decision the applicant’s son is 19 years old and he will turn 20 on 11 June 2012.
17. To meet cl.580.222(3) the Tribunal must be satisfied that there are exceptional reasons why the applicant’s son needs a student guardian to reside with him in Australia.
18. The Tribunal has considered the applicant’s written statement dated 1 June 2010 which was provided to the Department with the visa application. The Tribunal does not consider the submission put forward by the applicant as amounting to exceptional reasons. Specifically, at the time of application, the applicant asked to be allowed to stay in Australia with her son because he was about to turn 18. The applicant submitted that this is a critical period in her son’s development and he requires her economic and psychological support during his studies in Australia. However, this time has now passed and at the time of the decision the applicant’s son was almost 20 years old.
19. There is no information before the Tribunal about the current circumstances of the applicant’s son and why he might have an ongoing need for the applicant to reside with her in Australia. There is no evidence regarding cultural or religions ties, or medical needs, which might form the basis for the applicant’s son to have an ongoing need for the applicant to reside with him in Australia.
20. Considering all of these factors singularly and cumulatively, the Tribunal finds that the applicant’s son is now over 18 years old and the applicant has not established exceptional reasons for the grant of the visa and therefore does not meet cl.580.222(2) and (3).
21. The Tribunal has considered the applicant’s written submissions and finds that there is no evidence before the Tribunal to indicate that the grant of the visa to the applicant will significantly benefit the relationship between the government of Australia and the government of a foreign country and the Tribunal is not satisfied that the applicant meets cl. 580.222(4).
22. On the basis of the above, the Tribunal finds that the applicant does not meet the requirements of cl.580.222 of Schedule 2 to the Regulations.

DECISION

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

Christopher Smolicz
Member