1508150 (Migration)

[2015] AATA 3937

1508150 (Migration) [2015] AATA 3937 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TOMOYA KODAMA

CASE NUMBER:  1508150

DIBP REFERENCE(S):  CLF2015/30965

MEMBER:Mara Moustafine

DATE:18 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2015 at 3:49pm

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 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The visa applicant applied for the visa on 22 May 2015. The delegate refused to grant the visa on 29 May 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa on the basis that the applicant did not meet the requirement of cl.573.211(3) of Schedule 2 to the Regulations because he was not the holder of a substantive visa at the time of application and his last substantive visa was not of the type specified in cl. 572.211(3)(b).

4. The applicant appeared before the Tribunal on 18 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets cl.573.211(3) of Schedule 2 to the Regulations. Clause 573.211(3) relevantly states:

   An applicant meets the requirements of this subclause if:

   (a) the applicant is not the holder of a substantive visa; and
   (b) the last substantive visa held by the applicant was:

   (i)     a student visa; or

   (ii)     a special purpose visa; or

   (iii)     a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

   (iv)    a Diplomatic (Temporary) (Class IF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

   (v) a Subclass 497 (Graduate — Skilled) visa.           

6. At hearing the applicant confirmed that he arrived in Australia on 16 February 2015 as the holder of a UD601 electronic Visitor visa valid for three months. He applied for a subclass 573 Student visa on 22 May 2015.

7. The applicant accepted that, as his UD 601 visa had expired on 16 May 2015, he was not the holder of a substantive visa at the time of application. The Tribunal explained that as his last substantive visa was not of the type specified, he did not meet the requirements of in cl.573.211(3)(b) of the Regulation. Under these circumstances, there is no discretion for decision-makers to grant a visa to an applicant who does not satisfy all the relevant criteria.

8. The Tribunal has found the applicant does not meet an essential requirement of cl. 573.211. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

   DECISION

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

   Mara Moustafine
   Member