1418470 (Migration) [2015] AATA 3630 (10 November 2015)

Last Updated: 26 November 2015

1418470 (Migration) [2015] AATA 3630 (10 November 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Miss CARMEL MARIE ABORDO

CASE NUMBER: 1418470

DIBP REFERENCE(S): BCC2014/1436315

MEMBER: Sean Baker

DATE: 10 November 2015

PLACE OF DECISION: Melbourne

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

Statement made on 10 November 2015 at 6:00pm

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 22 October 2014 to refuse to grant the visa applicant 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 10 June 2014. The delegate refused to grant the visa on the basis that the applicant had not established exceptional reasons.
3. The applicant appeared before the Tribunal on 27 May 2015 to give evidence and present arguments.
4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant holds a passport of the Philippines, a copy of which is on the Departmental file. She indicated at the hearing that she is seeking to study a Diploma of Marketing at Cambridge College.
6. The issue in the present case is whether the applicant establishes exceptional reasons for the grant of the subclass visa 572, as required under regulation 572.227:

572.227
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:

...

(T) Subclass 600 (Visitor)

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

572.227A
For paragraph 572.227(b), the highest assessment level does not include assessment level 1.

7. The Tribunal finds that the applicant is applying to study a course within the 572 stream, that the application for the student visa was made in Australia; that as she holds a passport of the Philippines, she is subject to assessment level 3; that because this is higher than assessment level one, considering the effect of cl.572.227(b) and cl.572.227A as in effect at the time of visa application, the applicant is captured by cl.572.227(b) (see also the explanatory statement for Migration Amendment Regulations 2010 (No. 2), SLI 2010 No. 50, in relation to item [14]); and that at time of application for the student visa the applicant held a visa specified in cl.572.211.
8. The applicant therefore must establish exceptional reasons for the grant of a Subclass 572 visa: cl.572.227.
9. The delegate’s decision records that the applicant made claims attempting to establish exceptional reasons for the grant before the Department.

Reason I chose to lodge in Australia was because after super typhoon in November 2013 I was going to go back and do processing, studying in Australia was one of my greatest dreams, was a plan to go back, but father was in our home town, personally experienced the aftermath of the disaster, it was the hardest hit of the regions. He recommended if I was going to go to the application and to study, he figured it would be better to do it in Australia, as at that time the situation, still not in a normal stage, I realised if I go back to Philippines it would cause too much delay to organise documents and do processing of application. I sought professional advice and learnt that onshore application can only be done if can establish exceptional circs. At that time my father shared to me the comms and electricity, internet were very unstable, we could hardly communicate with him.
Six months afterwards, I started preparing my requirements about may because I really wanted to do the application. did my best to prepare all my docs before lodging the application. sometimes since there was difficulty communicating with my dad, that is why some of the requirements were a bit delayed, I was able to lodge it and submit reqts by june 2014.

10. At hearing I explained the requirement to the applicant. I noted the claims of the applicant as set out above and the letter from her father on the Departmental file. I noted that in the context of super typhoon Haiyan, why did this present exceptional reasons for the grant of the visa onshore. The applicant said that even now the country was not recovered, her home region had been hardest hit and there had been a slow recovery, even now people were still struggling. She said that there was documents that she had not been able to get that were beyond her control. I noted that this difficulty would be a problem for her whether she applied in the Philippines or Australia. She said that if she had to go back there it would be even more delayed and she would have more difficulty organising the requirements. The applicant said that she wanted to prove that she had no other intention but to study here and she had always been serious with her studies with a 99 – 100% attendance rate, she wanted to make clear that she was a genuine applicant for the visa. She said that she wanted to continue her studies here and get the qualifications at the Australian standard of education so that when she goes back to the Philippines it will give her promising prospects in the future. I noted to her that I was not convinced that these constituted exceptional reasons.
11. The applicant’s representative then made a submission. She said that the applicant had contacted her in May 2013 whilst here with her mother. They had been unable to go back and wanted to do a student application at that time, but realised they did not have the required documents, so they went to get a tourist visa extension to stay here. In February 2014 she then contacted her father again to see how the situation was, she knew she had to go back to lodge her application, and again in April/May she realised if she was going back there the communication is going to be very difficult, if she has to hand documents to the embassy in Manila, and she wanted to know if there was any other way to do it. The applicant did tell her by then she had gathered a lot of documents. But the applicant had struggled to get all of them. On contacting her father again, his advice was not to come back until things were settled. The representative said that on lodging the application in June nothing was mentioned by the Department, but then in July they wanted evidence to prove exceptional circs. The representative said that to secure her student visa, rather than go with the uncertainty of going back to the Philippines, knowing how long the process was going to take, she grabbed the option to go back to this. I noted that I was not sure that this constituted exceptional reasons for the grant of the visa. The representative noted that the applicant had completed her certificate IV, and was now starting a diploma course in June.
12. I provided further time and after the hearing a submission and supporting documents were provided. This sets out the situation of the applicant when she arrived in Australia, the Typhoon, her extension of her visitor visa, the advice of her father and family members to delay return to the Philippines, and her decision to apply onshore for a student visa. The submission details correspondence between the representative and the department. It is claimed that if the applicant had returned to the Philippines and lodged an application there, there would have been a break in communications, uncertainty as to when the applicant would have been in a position to hand over documents, , and those situations were far reaching up to a year after the disaster. It is claimed that the file was mishandled by the Department.
13. I have consider the information provided by the applicant to the Department, the letter from her father, the submissions and supporting documents and photographs and the evidence at hearing.
14. The applicant has raised issues regarding the natural disaster of super typhoon Haiyan (Yolanda) which hit the Philippines in early November 2013, her desire to study in Australia, her wish to progress her career though her studies, and it has been submitted, the mis-handling of her case by the Department. She has also submitted that she is a genuine student and genuine temporary entrant, that she has completed her certificate IV and had very good attendance.
15. In assessing the criterion in issue, the emphasis is on the word ‘exceptional’. In assessing such a matter the decision maker has a nearly unconfined discretion to address the particular circumstances of the case and consider whether an exception should be made, 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.
16. Whilst I understand and appreciate the applicant’s circumstances, the applicant’s reasons do not make her application exceptional in my view. I accept that the super typhoon was a natural disaster beyond the applicant’s control. I accept that life would have been difficult in the Philippines if she had returned at that time. I accept that at that time, she may have found it difficult to complete a student visa application in a timely manner and provide all of the documents. However, I do not consider that any of these facts lead logically to the conclusion that these are exceptional reasons for the grant of the 572 visa. The applicant has not articulated why she was compelled to apply for her studies at a particular point in time. She has not articulated why she could not have returned to the Philippines, prepared all of the documents needed, and applied when she had done so. I accept that there may have been some difficulties in doing this, and that it may have delayed her studies, but I do not accept that the applicant has established that this leads to exceptional reasons for the grant of the visa.
17. She has claimed that she wishes to study in Australia, that this will enhance her career and employment prospects, that she is a genuine student and a genuine temporary entrant. Many people wish to study in Australia, wish to study in order to enhance their career prospects, and are or claim to be genuine students and genuine temporary entrants. I do not consider that these give rise to exceptional reasons for the grant of the visa. I have had regard to the information in relation to the claimed mis-handling of the visa by the Department. I do not accept on the information before me that this was mis-handled, or that if it was, that this would constitute exceptional reasons for the grant of the visa.
18. There is nothing in the applicant’s circumstances that enables the Tribunal to find that the applicant has established exceptional reasons for the grant of a Subclass 572 visa. The applicant does not, therefore, satisfy clause 572.227. As such the decision must be affirmed.
19. There is no evidence before the Tribunal to indicate that the applicant satisfies key criteria for the grant of any other subclass within the class of visa sought and the Tribunal so finds.

DECISION

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

Sean Baker
Member