1502403 (Migration)

[2015] AATA 3115

1502403 (Migration) [2015] AATA 3115 (15 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Fan Ting Lee

CASE NUMBER:  1502403

DIBP REFERENCE(S):  CLF2014/1884 CLF2015/1884

MEMBER:Gabrielle Cullen

DATE:15 July 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 15 July 2015 at 4:52pm

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 29 January 2015 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 12 January 2015 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.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 572.211 because she has previously been granted a visa pursuant to Schedule 3 criteria and therefore does not meet criterion 3005.

5. On 16 June 2015 the Tribunal wrote to the applicant and invited her to appear at the Tribunal and present evidence and arguments in support of her case.  The applicant was advised that the hearing was scheduled for 15 July 2015.  The same correspondence asked that the applicant, within seven days of receipt of the correspondence, provide any documents on which she intended to rely upon to establish that he met the criteria.   

6. In part the hearing invitation letter also set out:

   If you are not able to attend a hearing you need to advise me as soon as possible. Please note that Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it or may dismiss your application for review without any further consideration of the application or the information before it.

7. The invitation was sent to the last email address provided by the applicant to the Tribunal in accordance with the Act. No response to the hearing invitation was received.

8. The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. She did not provide any of the information requested in the hearing invitation. In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets cl.572.211(3).  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 Migration Review 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).

11. The applicant’s previous student visa ceased on 20 December 2014 and the applicant lodged a further student visa application on 12 January 2014.  The Tribunal finds that the applicant was not the holder of a substantive visa at the time the application was made.  The applicant therefore satisfies cl.572.211(3)(a).

    Was the last substantive visa of a specified type?

12. The last substantive visa held by the applicant was a student visa.  She therefore satisfies the requirements of cl.572.211(3)(b).

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

13. On the evidence before the Tribunal, the applicant’s last substantive visa ceased to be in effect on 20 December 2014 and a subsequent visa application was made on 12 January 2015.

14. On the basis of the above, the Tribunal finds that the application was made within 28 days after the last substantive visa ceased to be in effect.  Accordingly, the applicant meets cl.572.211(3)(c).

    Is criterion 3005 met?

15. To meet cl.572.211(3)(d), the applicant must satisfy Schedule 3 criterion 3005 which requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations or Schedule 6 to the Migration (1993) Regulations; or r.35AA or r.42(1A) or (1C) of the Migration (1989) Regulations.

16. According to information in the primary decision, which the applicant provided to the Tribunal, the applicant was previously granted a student visa on the basis of Schedule 3. In that regard a previous subclass 570 student visa ceased on 23 April 2012 and the applicant applied on 7 May 2012.

17. The Tribunal therefore finds that the applicant does not satisfy Schedule 3 criterion 3005. 

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

19. 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 the reasons given above, the Tribunal also finds that the applicant does not meet the requirements for those visa subclasses.

    DECISION

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

Gabrielle Cullen
Member