1419999 (Migration)

[2015] AATA 3816

1419999 (Migration) [2015] AATA 3816 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deepak Kumar

CASE NUMBER:  1419999

DIBP REFERENCE(S):  CLF2014/132864

MEMBER:Susan Pinto

DATE:1 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 01 December 2015 at 11:11am

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 20 November 2014 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 4 November 2014 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 572.

3. The criteria for the grant of a Subclass 572 visa are set out in Part 572 of Schedule 2 the Regulations. Relevantly to this case they include cl.572.211. 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. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.572.211 because the application was not made within 28 days of the cessation of the last held substantive visa.

5. On 27 October 2015, the Tribunal wrote to the applicant and invited him to appear before the Tribunal to give evidence and present arguments at a hearing to be held on 1 December 2015. The hearing invitation was e-mailed to the applicant’s authorised recipient at the e-mail address provided when the authorised recipient was appointed. The applicant did not respond to the hearing invitation and did not appear before the Tribunal or contact the Tribunal to request a postponement of the hearing. In these circumstances and pursuant to s.362B of the Act, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies cl.572.211. That criterion requires that if the visa application is made in Australia, the applicant holds a specified substantive visa at that time, or alternatively, if not such a visa holder:

   ·the last substantive visa held was of a specified type, which relevantly includes a student visa: cl.572.211(3)(b); and

   ·the visa application was made within 28 days after the day when that last substantive visa ceased to be in effect; or if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation – the later of the day when that last substantive visa ceased to be in effect and the day when the applicant is taken to have been notified of the Tribunal’s decision: cl.572.211(3)(c); and

   ·the applicant satisfies Schedule 3 criterion 3005: cl.572.211(3)(d).

8. In this case, the visa application was made in Australia, and the evidence before the Tribunal is that the applicant did not hold a substantive visa of a type specified in the criteria.  As such, the applicant must meet the requirements of subclause (3) set out above.

   Was the visa application made within 28 days of the last substantive visa ceasing?

9. On the evidence before the Tribunal, the current visa application was made on 4 November 2014.

10. The applicant’s last substantive visa ceased to be in effect on 29 April 2014.

11. On the basis of the above, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect. Accordingly, the applicant does not meet cl.572.211(3)(c).

12. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.572.211(3), and therefore, does not meet the requirements of cl.572.211 of Schedule 2 to the Regulations.

13. For applicants in Australia who do not hold a substantive visa at the time of visa application, the other subclasses within the Class TU visa class have a requirement that is the same as cl.572.211(3). For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.

    DECISION

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

    Susan Pinto
    Member