1507753 (Migration)

[2016] AATA 3450

1507753 (Migration) [2016] AATA 3450 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Weihong Ye

CASE NUMBER:  1507753

DIBP REFERENCE(S):  BCC2015/1391167

MEMBER:Alison Mercer

DATE:25 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 25 February 2016 at 11:06am

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 20 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 13 May 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 because the delegate found that the applicant’s previous subclass 573 visa expired on 15 March 2015, but he did not apply for another subclass 573 visa until 13 May 2015, more than 28 days after his previous substantive visa ceased. As such, he did not meet cl.573.211.

5. The Tribunal received a review application from the applicant on 5 June 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Liang Lu, to be his representative and authorised recipient for correspondence for the purposes of the review. 

6. On 29 July 2015, the applicant’s agent made submissions indicating that the applicant’s original subclass 573 visa had not been printed out and placed in his passport, and he mistakenly believed that it did not expire until mid-2015.  He did not realise it had expired, or appreciate the significance of this, until his education provider contacted him to confirm whether he had applied for a new visa.  It was further submitted that the applicant had struggled with some aspects of his Bachelor of Commerce degree at Curtin University but now had only 5 subjects to go and would face a 3 year ban if his current visa application was rejected. 

7. On 14 September 2015, the Tribunal wrote to the applicant via his agent to invite him to attend a telephone hearing on 13 October 2015.

8. The applicant appeared before the Tribunal via teleconference on 13 October 2015 to give evidence and present arguments. His migration agent also participated by teleconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicant confirmed the visa history set out in the delegate’s decision and the fact that he made the current visa application on 13 May 2015, more than 28 days after his last student visa expired on 15 March 2015. The applicant and his agent submitted that the applicant did not have a print out of his last visa in his passport and incorrectly assumed that it did not expire until mid-2015.  The applicant only became aware that this was not the case when his education provider contacted him after 15 March 2015 to enquire whether he had applied for another student visa.  The applicant confirmed that he is enrolled in a Bachelor of Commerce degree and has been studying this course.  He was doing 5 units in the current semester, which finished in December 2015.  He then intended to do his final semester over the summer term (December 2015 to February 2016).  He said that he had passed 3 out of 5 subjects last semester but was confident that he would pass the remainder.  He and his agent submitted that if the applicant now returned to China, he would be subject to a 3 year bar due to having left as the holder of a bridging visa E, and it would be difficult (if not impossible) for him to get a further student visa offshore just to complete 1 more semester.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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).

12. 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?

13. The last substantive visa held by the applicant was a student visa which meets the requirements of cl.573.211(3)(b).

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

14. On the evidence before the Tribunal, the Tribunal finds that the applicant’s current visa application was made on 13 May 2015, and that the applicant’s last substantive visa ceased to be in effect on 15 March 2015.

15. 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.573.211(3)(c).

16. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.573.211(3), and therefore, does not meet the requirements of cl.573.211 of Schedule 2 to the Regulations.

17. 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.573.211(3). For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.

18. As discussed with the applicant and his agent at the hearing, the Tribunal has no discretion to take into account any extenuating factors as to why the applicant lodged his visa application more than 28 days after the expiry of his last student visa.

    DECISION

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

    Alison Mercer
    Member