1511410 (Migration)

[2016] AATA 3225

1511410 (Migration) [2016] AATA 3225 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Byeong-ju YUN

CASE NUMBER:  1511410

DIBP REFERENCE(S):  CLF 2015/50220

MEMBER:Mara Moustafine

DATE:9 February 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 09 February 2016 at 6:00pm

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 19 August 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 August 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 the applicant’s last substantive visa (TU 572) ceased on 4 June 2014 and he applied for the visa under review on 13 August 2015, which was more than 28 days after his last substantive visa ceased.

5. The applicant applied to the Tribunal for review of the decision of the Department on 20 August 2015. He attached the Department decision record.

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

7. On 25 August 2015, ahead of the hearing the applicant’s agent provided copies of a submission to the Department regarding his case; correspondence with the Department and four Confirmations of Enrolment (COEs) for courses the applicant had been studying since April 2013. The adviser’s submission outlined the circumstances which she claimed had led to the applicant’s failure to apply for his visa within the required time period. This included that the applicant had not realised that his last Student visa had expired as he had not received any visa grant notification from the Department and had mistakenly assumed that his visa was valid for as long as his Overseas Student Health Cover (OSHC) period (15 October 2015).

8. The applicant appeared before the Tribunal on 9 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

9. The Tribunal described the requirements of cl.572.211 and that the applicant’s previous student visa ceased on 4 June 2014 and he did not apply for a further student visa until 13 August 2015. It noted that where an application was found not to have been made within 28 days of the last substantive visa ceasing, the Tribunal had no discretion to consider the reasons why an applicant did not launch the visa application within the relevant time frame. The applicant repeated the claims outlined at paragraph 7 above. He said he never received a letter from the Department that his visa had expired but acknowledged that he never called the department to check. He continued to attend his course because his initial study plan was for two years. The Tribunal reiterated that if the application was made more than 28 days after the expiry of his previous visa it has no discretion in the matter.

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.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).

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.572.211(3)(b).

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

14. On the evidence before the Tribunal, the current visa application was made on 13 August 2015. The applicant’s last substantive visa ceased to be in effect on 4 June 2014.

15. The Tribunal finds that the applicant applied for the visa more than 28 days after the expiry of his previous student visa.  The Tribunal has considered all the information raised by the applicant. However, it has no discretion in this matter.

16. 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).

17. On the basis of the above, 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.

18. 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

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

    Mara Moustafine
    Member