1506730 (Migration)

[2016] AATA 3131

1506730 (Migration) [2016] AATA 3131 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ya-Wen Hsieh

CASE NUMBER:  1506730

DIBP REFERENCE(S):  BCC2015/1233842

MEMBER:Alexis Wallace

DATE:27 January 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 27 January 2016 at 11:24am

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 13 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 28 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 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 she was not the holder of a substantive visa at the time of application and her last substantive visa was not one of the visas listed in cl.572.211(3) of the Regulations. 

5. The applicant appeared before the Tribunal on 27 January 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant stated that she had tried to apply for a student visa online on 23 April 2015 but she was unable to complete or lodge the application.  She then completed a paper visa application and posted it to the Department of Immigration that same day.  She acknowledged that her substantive visa, being a subclass 417 visa, expired on 26 April 2015 and that the student visa application was received by the Department of Immigration two days later, on 28 April 2015.  The Tribunal explained to the applicant that the critical date, being the date of application, was the date the Department of Immigration received her visa application rather than the date it was placed in a post box.  The applicant said she now understood that, at the time her visa application was made, she did not hold a substantive visa.

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 last substantive visa of the specified type?

9. The last substantive visa held by the applicant was a subclass 417 working holiday visa which does not meet the requirements of cl.572.211(3)(b).

10. On this basis, 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.

11. 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

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

    Alexis Wallace
    Member