1507538 (Migration)

[2016] AATA 3132

1507538 (Migration) [2016] AATA 3132 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DIONYSIS ATHANASIADIS

CASE NUMBER:  1507538

DIBP REFERENCE(S):  BCC2015/1205294

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 12:08pm

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 18 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 22 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 he did not hold a substantive visa and his visa application was lodged more than 28 days after the day his last substantive visa ceased to be in effect.

5. The applicant was represented in relation to the review by his registered migration agent. The applicant was invited to appear at a hearing on Wednesday 27 January 2016 to give evidence and present arguments.  He did not appear at the scheduled hearing.

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 572 student visa  which meets the requirements of cl.572.211(3)(b).

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

10. On the evidence before the Tribunal, the current visa application was made on 22 April 2015.  The applicant’s last substantive visa ceased to be in effect on 19 August 2013. 

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. 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.

    Alexis Wallace
    Member