1512212 (Migration)

[2016] AATA 3136

1512212 (Migration) [2016] AATA 3136 (25 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yong Hao Wong

CASE NUMBER:  1512212

DIBP REFERENCE(S):  BCC2015/2444224

MEMBER:Don Lucas

DATE:25 January 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 January 2016 at 5:20pm

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 28 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 21 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 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 he did not satisfy criterion 3005.

5. The applicant appeared before the Tribunal on 25 January 2016 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.  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 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?

10. On the evidence before the Tribunal, the current visa application was made on 21 August 2015. The applicant’s last substantive visa ceased to be in effect on 10 August 2015.

11. On the basis of the above, the Tribunal finds that the application was made within 28 days after the last substantive visa ceased to be in effect.

12. Accordingly, the applicant meets cl.573.211(3)(c).

    Is criterion 3005 met?

13. To meet cl.573.211(3)(d), the applicant must satisfy Schedule 3 criterion 3005 which requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations or Schedule 6 to the Migration (1993) Regulations; or r.35AA or r.42(1A) or (1C) of the Migration (1989) Regulations.

14. According to the delegate’s decision, a copy of which was provided by the applicant to the Tribunal, a visa was previous granted to the applicant on 23 May 2014 on the basis of the satisfaction of the criteria set out in Schedule 3. The applicant acknowledged this to be the case at the hearing.

15. Accordingly, the applicant does not satisfy criterion 3005 and the requirements of cl.572.211(3)(d).

16. 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.

    CONCLUSIONS

17. 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.

    DECISION

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

    Don Lucas
    Member