1506713 (Migration)

[2015] AATA 3212

1506713 (Migration) [2015] AATA 3212 (29 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shu Hua

CASE NUMBER:  1506713

DIBP REFERENCE(S):  BCC2015/1185154

MEMBER:Adrian Ho

DATE:29 July 2015

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

Statement made on 29 July 2015 at 5:35pm

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 1 May 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 21 April 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 573.

3. The criteria for the grant of a Subclass 573 visa are set out in Part 573 of Schedule 2 the Regulations. Relevantly to this case they include cl.573.211. 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.573.211.

5. The applicant appeared before the Tribunal on 29 July 2015 to give evidence and present arguments.

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.573.211. 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.573.211(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.573.211(3)(c); and

   ·the applicant satisfies Schedule 3 criterion 3005: cl.573.211(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.

9. At hearing the following points were made to the applicant:

   a.There are alternative options to meeting the mandatory criterion in cl.573.211; however, all the options other than cl.573.211(3), require that at substantive visa is held on the day of visa application;

   b.cl.573.211(3) is the only option which permits satisfaction of cl.573.211 where no substantive visa was held on that day; however, it requires in the circumstances that the visa applicant was made within 28 days after the day when the last substantive visa ceased to be in effect (the 28 day rule);

   c.There are equivalent criteria to cl.573.211 for each of the other subclasses of the Class TU visa which each require that a specified substantive visa is held on the day of visa application, or else that the 28 day rule is satisfied, and if the 28 day rule is not satisfied, the applicant would not satisfy the corresponding mandatory criterion for all applicable subclasses; and

   d.The tribunal has no discretion in the application of cl.573.211(3) or its counterparts for the alternative subclasses of the Class TU visa.

10. At hearing, the applicant made the following points:

    a.she was advised by the Department when she made the applicant that there was a high chance the application would be refused;

    b.she had the impression from the Department that the tribunal could give her a positive decision;

    c.she was unaware of the 28 day rule;

    d.her last substantive visa, a student visa, expired on 11 March 2015;

    e.she held a bridging visa from that point onwards:

    f.she agreed she made the present visa application on 21 April 2015;

    g.She acknowledged that more than 28 days had elapsed between those dates.

11. The tribunal suggested to the applicant:

    a.that it appeared the applicant did not meet cl.573.211(3)(c) because more than 28 days had elapsed between the relevant dates above; and

    b.that the applicant could not meet cl.573.211 by virtue of the other alternatives that if offers because on the evidence the bridging visa held from 11 March 2015, and on the day the visa application was made, is not a substantive visa.

12. It was reemphasised to the applicant that the tribunal had no discretion in the application of cl.573.211(3) or its equivalent for other subclasses.

13. The tribunal finds that the applicant’s last substantive visa expired on 11 March 2015, that the applicant did not hold a substantive visa from that day, and that she made the visa application on 21 April 2015, and that more than 28 days had elapsed between those two relevant dates.

14. There is no evidence that a tribunal review of a decision to cancel a substantive visa exists in this case, so as to engage cl.573.211(3)(c)(ii).  On the contrary, the applicant’s evidence is that her last substantive visa expired.

15. As a result, the applicant does not meet cl.573.211(3)(c) and cl.573.211(3) more generally. 

16. As the applicant did not hold a substantive visa on the day the visa application was made, the applicant does not meet any of the other subparagraphs of cl.573.211.

17. The applicant does not meet cl.573.211(1) and does not meet cl.573.211 as a whole.

18. As suggested at hearing, there are equivalent criteria to cl.573.211 for each of the other subclasses of the Class TU visa, and as the requirements of cl.573.211 are not met because the 28 day rule is not met, the applicant does not satisfy the corresponding mandatory criterion for each of the other applicable subclasses.

    DECISION

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

    Adrian Ho
    Member