1509287 (Migration)

[2015] AATA 3879

1509287 (Migration) [2015] AATA 3879 (7 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamil Zawawi

CASE NUMBER:  1509287

DIBP REFERENCE(S):  BCC2015/1656026

MEMBER:Miriam Holmes

DATE:7 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 07 December 2015 at 2:35pm

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 15 June 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 9 June 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 was not satisfied that at the time of application the applicant was the holder of a substantive visa or to have made the visa application within 28 days of the last substantive visa ceasing.

5. The applicant appeared by teleconference before the Tribunal on 7 December 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. Therefore subclauses (2), (4) and (6) of cl.573.611 do not apply.  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 Tribunal made the following findings based on the oral evidence, delegate’s decision record (provided by the applicant) and the Department’s movement records:

   ·On 8 February 2012 the applicant was granted a student (subclass 573) visa until 15 March 2015.

   ·On 5 March 2015 the applicant was granted an Electronic Travel Authority (Temporary) visitor (sub class 601) visa until 6 June 2015.

   ·On 9 June 2015 the applicant made an application for a student (subclass 573) visa. This is the current student visa application under consideration by the Tribunal.

10. On the evidence before the Tribunal, the current visa application was made on 9 June 2015.

11. The Tribunal finds that at the time of application the applicant was not the holder of a substantive visa and an Electronic Travel Authority (Temporary) (class 601) visa is not a specified visa in cl.573.211(3)(b) and therefore the applicant does not meet the requirements of cl.573.211(3)(b).

12. The applicant gave a written submission that he tried to lodge a student visa application online, however the Immigration Department online lodgement system would not allow him to proceed with the application. The applicant also stated that he travelled to the Immigration office in Hobart for assistance to make an online application and he was advised to lodge a paper visa application form. The applicant confirmed this at the hearing.

13. The Tribunal understands that the applicant has not yet completed his studies, however the Tribunal has no discretion in this case to grant a student visa.

14. 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.

15. 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.

    DECISION

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

    Miriam Holmes
    Senior Member