1512783 (Migration)

[2016] AATA 3727

1512783 (Migration) [2016] AATA 3727 (13 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Mlack Taher A Kurdy
Dr Fahad Ali S Algarni

CASE NUMBER:  1512783

DIBP REFERENCE(S):  BCC2015/2343677

MEMBER:Adrian Ho

DATE:13 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 13 April 2016 at 5:37pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 28 August 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 12 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 (the 28 day rule).

4. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.573.211 because the applicant did not meet the 28 day rule.

5. The applicants appeared before the Tribunal on 13 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

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

8. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Subclass 580

9. At hearing, the applicant was informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.

10. The applicants confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds.

11. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.

    The 28 day rule

12. 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).

13. 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.

14. At hearing, the applicant agreed that:

    a.The visa application was made on 15 August 2015 in Australia, and no substantive visa was held on that day;

    b.The last substantive visa held expired on 3 August 2014.

15. The applicant was then informed that:

    a.There are alternative options to meeting the mandatory criterion in cl.573.211; however, all the options other than cl.573.211(3), require that at substantive visa is held on the day of visa application;

    b.A bridging visa is not a substantive visa;

    c.Clause 573.211(3) is the only option which permits satisfaction of cl.573.211 where no substantive visa was held on that day; however, it requires in the circumstances that the visa applicant was made within 28 days after the day when the last substantive visa ceased to be in effect (the 28 day rule);

    d.There are equivalent criteria to cl.573.211 for each of the other subclasses of the Class TU visa which each require that a specified substantive visa is held on the day of visa application, or else that the 28 day rule is satisfied, and if the 28 day rule is not satisfied, the applicant would not satisfy the corresponding mandatory criterion for all applicable subclasses;

    e.The tribunal has no discretion in the application of cl.573.211(3) or its counterparts for the alternative subclasses of the Class TU visa.

16. The tribunal suggested to the applicant:

    a.that it appeared the applicant did not meet cl.573.211(3)(c) because more than 28 days had elapsed between the relevant dates above; and

    b.that the applicant could not meet cl.573.211 by virtue of the other alternatives that it offers because on the evidence no substantive visa was held on the day the visa application was made.

17. It was reemphasised to the applicant that the tribunal had no discretion in the application of cl.573.211(3) or its equivalents for other subclasses.

18. The tribunal finds that the applicant’s last substantive visa expired on 3 August 2014, that the applicant did not hold a substantive visa from that day, and that the applicant made the visa application on 15 August 2015, and that more than 28 days, in fact more than a year, had elapsed between when the last held substantive visa expired and when the present visa application was made. 

19. There is no evidence that a tribunal review of a decision to cancel a substantive visa exists in this case, so as to engage cl.573.211(3)(c)(ii).  On the contrary, the applicant’s evidence is that the last held substantive visa expired.

20. As a result, the applicant does not meet cl.573.211(3)(c) and cl.573.211(3) more generally. 

21. As the applicant did not hold a substantive visa on the day the visa application was made, the applicant does not meet any of the other subparagraphs of cl.573.211.

22. The applicant does not meet cl.573.211(1) and does not meet cl.573.211 as a whole.

23. As suggested at hearing, there are equivalent criteria to cl.573.211 for each of the other subclasses of the Class TU visa, and as the requirements of cl.573.211 are not met because the 28 day rule is not met, the applicant does not satisfy the corresponding mandatory criterion for each of the other applicable subclasses.

24. The parties suggested at hearing that the primary applicant would have held a substantive visa into 2015 based on her husband’s visa but that the Department never made a decision on her application as a secondary applicant.  They suggest that if the visa she had applied for had been granted to her, she would have met the 28 day rule for this visa application.

25. That may or may not be so.  In any event, no substantive visa was granted to her and it is clear that she does not meet the criterion in issue.

26. The secondary applicant does not propose to study, has no relevant enrolment in a course of study, therefore cannot meet the primary criteria for any subclass.  He also fails against relevant secondary criteria.

    DECISION

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

    Adrian Ho
    Member