1504726 (Migration)

[2016] AATA 3147

1504726 (Migration) [2016] AATA 3147 (2 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Surangkana Sudmee
Mr Titinan Khongkhad

CASE NUMBER:  1504726

DIBP REFERENCE(S):  CLF2015/17842

MEMBER:Robert Titterton

DATE:2 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 02 February 2016 at 4:05pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 27 March 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 March 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. 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 visas on the basis that the first named applicant did not satisfy the requirements of cl.572.211 because the application was lodged more than 28 days since her last substantive student visa ceased to be in effect.

5. The applicants appeared before the Tribunal on 1 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

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

8. The issue in the present case is whether the first named applicant (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).

9. 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 last substantive visa of the specified type?

10. The last substantive visa held by the applicant was a Student (Temporary) (Class TU) which met the requirements of cl.572.211(3)(b).

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

11. The applicant’s visa ceased on 24 December 2014. Her present application for a student visa was lodged on 25 March 2015. This was discussed with the applicant at the hearing. She explained that her then migration agent had failed to apply for her visa in time. She had discussed this with him and took responsibility for this failure. I explained to the applicant that I was not sure that the Tribunal had the power to overlook or excuse a failure to comply with the requirement of cl.572.211 that the application for the visa be filed within 28 days of the previous visa ceasing. The agent’s representative submitted that the exceptional circumstances of the applicant, namely her agent’s failure to lodge the application in time, warranted the delegate’s decision being set aside.

12. We had a lengthy discussion at the hearing about the matters on which the applicant would rely to establish exceptional circumstances, if I had the power to overlook or excuse the failure ot comply with cl.572.211 on the grounds of exceptional reasons or circumstances. But as I made clear at the conclusion of the hearing, I remained to be convinced that there was such a power.

13. At the conclusion of the hearing, I allowed the applicant additional time to file submissions on this point. No further submissions were received.

14. In my view, there is no such power to overlook the failure of the applicant to file her application within 28 days of her previous substantive visa ceasing, either because exceptional circumstances exist or on any other ground or basis.

    CONSIDERATION

15. On the evidence before the Tribunal, the first applicant’s student visa ceased to be in effect on 24 December 2014. Her present application for a student visa was lodged on 25 March 2015.

16. 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 or the day when the applicant was taken to be notified of the Tribunal’s decision to set aside the decision in relation to the visa cancellation. Accordingly, applicant does not meet cl.572.211(3)(c).

17. 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.

    DECISION

18. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    R.C Titterton
    Member