1513146 (Migration)

[2016] AATA 3093

1513146 (Migration) [2016] AATA 3093 (12 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Deepali Sahi
Mr Gursewak Singh
Master Anhad Singh Chahal

CASE NUMBER:  1513146

DIBP REFERENCE(S):  BCC2015/2476529

MEMBER:Alison Mercer

DATE:12 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 12 January 2016 at 1:18pm

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 11 September 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 25 August 2015 for the first named applicant 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 specified substantive visa ceasing.

4. The delegate refused the visas on the basis that the first named applicant did not satisfy the requirements of cl.572.211 because she had ceased to hold a substantive visa at the time that the subclass 572 visa application was made, and the last visa she held, a subclass 417 (Working Holiday) visa, which expired on 20 August 2015, was not one of a kind specified in cl.572.211(3)(b) and thus she could not satisfy cl.572.211 as a whole.  The delegate refused the applications of the second and third named applicants (the husband and son of the first named visa applicant) on the basis that they did not satisfy the secondary visa criteria to be members of the family unit of a person who held a subclass 572 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 24 September 2015.  It was accompanied by a copy of the delegate’s decision. 

6. On 11 December 2015, the Tribunal wrote to the applicants to invite them to a hearing on 8 January 2016. 

7. On 30 December 2015, the applicants indicated that they would attend the hearing and provided a number of documents to the Tribunal by email, including:

   ·confirmation that the first named applicant had applied for a new United Kingdom passport for her son (the third named applicant) on 19 June 2015 and that the application would take approximately 8 weeks to process, and confirmation that it had been sent to her as at 29 July 2015 from the UK;

   ·proof of the first named applicant’s UK teaching qualifications, induction completed July 2014;

   ·first named applicant’s UK Postgraduate Certificate in Education (Secondary – Mathematics) issued 27 July 2012;

   ·first named applicant’s Australia/NZ provisional teaching registration card;

   ·birth certificate of the third named applicant, born 13 February 2015;

   ·copy of biodata pages of the first named applicant’s UK passport issued 11 March 2014;

   ·Certificates of Enrolment (CoEs) for the first named applicant for Diploma of Management at Brighton Institute (24 August 2015 to 23 May 2016) and Advanced Diploma of Management at same provider (15 June 2016 to 14 January 2017); 

   ·evidence of overseas student health cover (OSHC) for the applicants;

   ·rental agreement and rental receipt for the first and second named applicants’ tenancy in Melbourne, January – February 2015 and water bill for that property in their names from August 2015;

   ·statutory declaration by the first and second named applicants dated 2 September 2015 confirming that they are a married couple with one son, and that they came to Australia as working holiday visa holders approximately 1 year ago; and

   ·supporting statement from the first named applicant, in which she indicates (in summary) that she is a qualified teacher from the UK who came to Australia with her husband in August 2014 as the holders of Working Holiday visas.  Their son was born in Australia in February 2015.  She decided while here to undertake further study in Management to enhance her employment prospects in the UK.  The first named applicant stated that she lodged the subclass 572 visa application on a form 157A but was incorrectly told by a Department officer that she should have used a form 157G (Student Guardian visa).  Moreover, she was eligible for an Electronic Travel Authority (ETA) as a UK passport holder, so she did hold an eligible visa for the purposes of cl.572.211 at the time of the subclass 572 visa.  The first named applicant stated that she tried to apply online for a student visa prior to 20 August 2015 (the expiry date of her Working Holiday visa) but the online system would not allow her to do so as she did not have her son’s passport details at that time.  This was because he was born in Australia and she had applied for, but not yet received, his UK passport from the UK authorities.  Once she had received his passport, she again attempted to apply online but the system would not accept her application as it was after 20 August 2015.  She therefore applied with a form 157A on 25 August 2015.  She also states that she received incorrect advice from her education provider to the effect that, as a UK passport holder, she could apply for the subclass 572 visa within 28 days of ceasing to hold a substantive visa.  In any case, the first named applicant reiterated that she believed that she held an ETA, a substantive visa, on 25 August 2015 due to being a British citizen, and therefore did meet cl.572.211.

8. The applicants appeared before the Tribunal on 8 January 2016 to give evidence and present arguments.

9. The first named applicant confirmed the contents of her statutory declaration.  The Tribunal asked her whether she had applied for an ETA.  The first named applicant said that she had not, just for a subclass 417 visa, and then for a subclass 572 visa.  The latter application was only made after 20 August 2015 due to the delay in the issuing of her son’s UK passport.  However, she was advised by her education provider that she could validly apply for the subclass 572 visa within 28 days of the expiry of her previous visa, and she followed this advice.

10. The Tribunal discussed with the first named applicant its view that legally, only holders of specified visas could apply for a subclass 572 visa within 28 days of the expiry of the specified visa, and that the subclass 417 (Working Holiday) visa was not a specified visa for these purposes (despite the incorrect advice she may have received to the contrary from her education provider).  The Tribunal then put to the first named applicant pursuant to s.359AA of the Act information it held, being the first named applicant’s electronic movement records maintained by the Department.  The Tribunal explained that these showed that she had not at any time been issued an ETA visa, and thus the Tribunal’s view was that she did not hold an ETA at the time of her subclass 572 visa and did not come within cl.572.211(2).  It advised that if it found this to be the case, then this would the reason (or part of the reason) to affirm the decision under review, as she would not hold a visa specified in cl.572.211(2) and her subclass 417 visa was not a visa specified for the purposes of cl.572.211(3).  The Tribunal noted that cl.572.211 contained no discretion to waive the requirements to hold, or have held, a specified visa at the time of the subclass 572 visa application.  The first named applicant indicated that she understood the information.  The Tribunal asked her whether she wished to respond to it, indicating that she could request further time to do so.  The first named applicant elected to respond immediately.

11. The first named applicant reiterated that she had followed the advice of her education provider in applying for a subclass 572 visa, and indicated that she genuinely wanted to study in Australia and queried whether she could now apply for an ETA, and to study while holding an ETA.  The Tribunal indicated that it was unable to provide immigration advice but that its preliminary view was that she could not make an ETA application onshore and not in immigration clearance.  It advised her to seek further information from the Department or a registered migration agent concerning what further options she might have in the event that the decision under review was affirmed. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the first named 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 (cl.572.211(2)), or alternatively, if not such a visa holder:

    ·the last substantive visa held was of a specified type: 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).

    Was the last substantive visa of the specified type?

14. The Tribunal finds, on the basis of the first named applicant’s oral evidence and the Department’s electronic movement records, that neither she nor her family unit members have to date been issued an ETA.  Accordingly, the last substantive visa held by the first named applicant (and her family members) was a subclass 417 (Working Holiday) visa which ceased on 20 August 2015.  The Tribunal is satisfied that the applicants made their subclass 572 visa applications on 25 August 2015.

15. The Tribunal further finds that subclass 417 visas are not specified as meeting the requirements of cl.572.211(3)(b) and thus the first named applicant does not meet cl.572.211(3) as a whole, notwithstanding the fact that the subclass 572 visa applications were made within 28 days of the subclass 417 visas ceasing.

16. As the Tribunal has found that none of the applicants held a substantive visa on 25 August 2015, it finds that the first named applicant cannot meet cl.572.211(2), which requires that she held a specified substantive visa at the time of application.  The Tribunal finds that cl.572.211(4) and (6) do not apply in her case, as they refer to persons who hold a subclass 560, 562, 570, 571, 572, 573, 574, 575 or 576 visa at time of application.  The Tribunal is satisfied that cl.572.211(5) was omitted in 2007.

17. On the basis of the above, the Tribunal finds that the first named applicant does not satisfy any of the subparagraphs of cl.572.211(2) to (6), 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. For reasons given above, the Tribunal also finds that the first named applicant does not meet the requirements of these subclasses.

19. The Tribunal must also affirm the decision not to grant the second and third named applicants Class TU visas on the basis that they do not meet the secondary visa criteria to be members of the family unit of a person who holds a Class TU visa, nor is there any evidence to suggest that they meet the primary visa criteria in their own right.

    DECISION

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

    Alison Mercer
    Member