1511032 (Migration)

[2016] AATA 3754

1511032 (Migration) [2016] AATA 3754 (19 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUCHUAN LIU

CASE NUMBER:  1511032

DIBP REFERENCE(S):  CLF2015/39771

MEMBER:Andrew Mullin

DATE:19 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 April 2016 at 2:46pm

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 27 July 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 10 July 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, this clause 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 at the time of his visa application he was not the holder of a substantive visa and the last substantive visa he had held was not a type of visa specified in cl.573.211(3)(b).

5. The applicant appeared before the Tribunal on 7 April 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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; 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).

9. In this case, the information in the Department’s movement records and the delegate’s decision record indicates that the applicant was granted a subclass VC 485 visa on 6 January 2014, to cease on 6 July 2015. The visa application which is the subject of this review was lodged on 6 July 2015, while the applicant was in Australia. However, on 7 July 2015 the application was assessed as being invalid because it did not meet the requirements of Item 1222(2) of Schedule 1 to the Migration Regulations which required the applicant to pay the correct visa application charge. This issue was notified to the applicant by telephone on 7 July 2015 and in a follow-up call on 8 July 2015. On 9 July 2015 the Department received an email authorisation containing the applicant’s new visa payment page for credit card charge. By this time, however, his substantive visa - subclass VC 485 – had ceased and he was the holder of a bridging visa. He was found not to satisfy cl. 573.211 because he was not the holder of a substantive visa at the time of application and his previous substantive visa (VC 485) was not one of the visas specified in cl.573.211(3)(b)

10. In written submissions to the Tribunal received on 1 April 2016 the representative states, in summary, that the applicant submitted a student visa application on the day that his last substantive visa, VC 485, expired and that he instructed his (previous) agent to complete the paperwork.  Although the visa application charge increased on 1 July 2015 the agent was unaware of this fact and so submitted an incorrect payment with the application.  The correct payment was not made until 9 July 2015.  It was because of this error that the Applicant was not the holder of a substantive visa at the time of his application but the error was beyond his control.  The Applicant has never breached any visa condition since arriving in Australia.  He has been a genuine student and is currently studying full-time at TOP Education Institute.  Attached to the submission are academic records and a letter from TOP Education institute confirming that the applicant is enrolled a course in Master of Marketing and Public Relations, from 7 March 2016 to 30 June 2017.

11. At the hearing the applicant confirmed that he understood the information concerning his visa history which had led the delegate to refuse to grant the visa.  He also confirmed he understood that the information was relevant for the decision in his case because it could lead me to conclude that he did not satisfy the requirements of 573.211 and that the decision to refuse to grant the visa should be affirmed.  Pursuant to s.359AA I invited him to comment on the information or respond to it, explaining that he could do so at once, at a resumed session of the hearing or later in writing, with more time for this purpose if necessary.  Stating that he wished to respond at once he summarised the circumstances which had led to his failure to lodge the visa application before his VC 485 visa ceased.  He stressed that he had left the arrangements in the hands of his previous agent, who had failed to notice that the relevant application fee was increased five days before the application was lodged.  He said the situation was outside his control, adding that he had continued to study following the delegate’s decision.

12. In oral submissions the advisor acknowledged that the applicant did not meet the requirements for the visa, because of circumstances beyond his control.  He submitted that the applicant is a genuine student and has been following the natural course of education, completing a Bachelor degree and then applying for a Graduate visa for work experience before commencing a Masters course.  It would be extremely unfair to end his studies and send him back to China because of a minor mistake beyond his control.  He requested that if the Tribunal were to find that the applicant did not meet the visa conditions it include in its decision a recommendation that the Minister exercise his discretion to intervene in the case by substituting a more favourable decision.

    Was the last substantive visa of the specified type?

13. The facts in this case are not in dispute.  The visa application was made in Australia and the applicant did not hold a substantive visa at that time.  The last substantive visa he held was a Class VC (Skilled)(Provisional) subclass 485 (Temporary Graduate) visa.  The Tribunal has reviewed subparagraph (b) of cl.573.211(3) and is satisfied that the Class VC (Skilled)(Provisional) subclass 485 (Temporary Graduate) visa is not specified as one of the types of visa that meets cl.573.211(3).  Accordingly, the Tribunal finds that the applicant does not meet cl.573.211 as a whole and cannot be granted a subclass 573 visa.

14. 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.

15. For these reasons the decision under review must be affirmed.

    Ministerial Intervention

16. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act.  Under s.351, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to an applicant, if the Minister thinks that it is in the public interest to do so.  The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his powers under s.351, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 may only be exercised by the Minister personally.  Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

17. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.  Those guidelines indicate that the Minister will generally only consider exercising his public interest powers in cases which are referred to the Department by a review Tribunal or which exhibit certain unique or exceptional circumstances. Relevantly to the present case, these guidelines may include:

    ·Circumstances that the legislation does not anticipate or clearly unintended consequences of legislation or the application of relevant legislation leads to unfair or unreasonable results

18. On the information before the Tribunal I accept that:

    ·At the time he lodged the visa application on the applicant’s behalf on 6 July 2015 the former advisor was unaware that the relevant application fee had increased on 1 July 2015, five days earlier.  As a result he included the wrong payment details with the application.

    ·This simple inadvertency led to the application being rejected and to a delay of four days before it was able to be accepted with the correct payment details.  By this time the applicant’s substantive VC 485 visa had ceased and he had been issued with a bridging visa.

    ·As a consequence of the error the applicant was found not to meet the requirements of s.573.211 and the visa was refused. 

19. I also accept that the applicant has achieved satisfactory results in his academic career to date, having completed a Bachelor degree and commenced a Masters degree.  I also accept that what appears to have been a very minor error on the part of his former migration agent potentially has very large adverse consequences for his academic career in Australia.

20. On the basis of the foregoing, I accept that the applicant’s circumstances appear capable of meeting the above criteria for referral to the Minister in order for him to consider whether to exercise his s. 351 discretionary intervention powers in this case.

    DECISION

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

    Andrew Mullin
    Member