1518107 (Migration)

[2016] AATA 3465

1518107 (Migration) [2016] AATA 3465 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chiara GRAGNANIELLO

CASE NUMBER:  1518107

DIBP REFERENCE(S):  BCC2015/3648690

MEMBER:Don Lucas

DATE:9 March 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 09 March 2016 at 11:22am

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 14 December 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 1 December 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 range of specified substantive visas 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(3) because the applicant was not the holder of a substantive visa at the time of application and because her last substantive visa was not specified for the purposes of cl.572.211(3)(b).

5. The applicant was represented in relation to the review by her solicitor, who is also a registered migration agent.

6. The applicant appeared before the Tribunal on 1 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Fabrizio Graci, the applicant’s partner.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal has also determined that the matter appears to fit within Ministerial guidelines for public interest intervention and will refer the matter to the Department with recommendations to this effect.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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).

10. 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?

11. The last substantive visa held by the applicant was a subclass 417 Working Holiday visa. This visa expired on 1 November 2015. The present application was only made on one December 2015. As the applicant was not the holder of a substantive visa at the time of the present application, the last substantive visa held by the applicant must be specified under cl.572.211(3)(b). A Working Holiday visa subclass 417 is not specified for these purposes. In written submissions and at the hearing the applicant and her representative acknowledged this to be the case.

12. Accordingly, as the applicant was not the holder of a visa specified under of cl.572.211(3)(b) she is unable to meet this criterion.

    CONCLUSION

13. 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.

    Ministerial guidelines for public interest intervention

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

15. The applicant’s evidence, which the Tribunal accepts, is that she came to lodge the present student visa application one month after the expiry of her subclass 417 Working Holiday visa through inadvertence on her own part. In particular the applicant’s evidence is that she was incorrectly advised in relation to the expiry date of her previous substantive visa by her education agent, and that certain persons providing education agent services to the applicant and also appearing to provide immigration assistance were not registered migration agents. On this basis, if established, the immigration assistance provided to the applicant, as well is involving incorrect advice, would also appear to be in contravention of the Migration Act s.280. This section, subject to certain exceptions which do not apply in the present case, make it an offence to provide immigration assistance where the provider is not a registered migration agent.

16. Departmental movement records confirm that the applicant has been the holder of two successive Working Holiday visas, subclass 417. The first visa was granted to the applicant on 29 September 2013. The applicant first arrived in Australia on 1 November 2013 and her first Working Holiday visa expired on 1 November 2014. The applicant was granted a second Working Holiday visa subclass 417 on 9 December 2014, after having undertaken the required period of specified employment in regional Australia. The evidence appears to establish that the applicant was given immigration advice by her education agent to the effect that her second Working Holiday visa would also last the period of 12 months following grant. However, cl.417.511(2) establishes that a second Working Holiday visa will cease 12 months after the date of expiry of the first Working Holiday visa.

17. The applicant through her representative has provided email correspondence from the education agent to the applicant accompanied by an accredited translation of an extract from an email dated 28 August 2015 in which the education agent provides advice to the applicant to the effect that she will be able to lodge her second Working Holiday visa “in the first weeks of November”, whereas the last day for any lodgement that may have satisfied cl.572.211(3)(b) in fact ended on 1 November 2015. This may be taken to implicitly reflecting a misunderstanding that the applicant’s second Working Holiday visa expired on 9 December 2015 12 months after its grant, as opposed to 12 month after the grant of the first Working Holiday visa. Specifically, the translated extract shows the education agent as stating to the applicant in the email dated 28 August 2015:

    In any event, if you need any other information you can drop by anytime, otherwise just let me know if and when you want to proceed; but I think that if we do everything in the first weeks of November, we shouldn’t have any problem.

18. The evidence of the advice provided by the applicant’s education agent is problematic for two reasons. Firstly, if it were to be established that the education agent, not being a registered migration agent, has provided immigration assistance as this term is defined in section 276(1) of the Act, it would constitute a breach of section 280(1) of the Migration Act.

19. The Tribunal is conscious of the fact that the education agent or agents who have been accused by the applicant of providing immigration assistance to her and who may not be registered migration agents have not been parties to the review and have had no right of reply concerning the allegations made in relation to the conduct. The Tribunal notes that the applicant’s representative has raised the very serious concerns in relation to the behaviour of the education agent with the Department in an email to the Assistant Director, Victorian Student Centre on 5 January 2016. There is no information before the Tribunal as to whether any action has been taken in relation to investigations concerning alleged breaches of the Migration Act in relation to unauthorised provision of immigration assistance. Further action in this regard, if any, will be a matter for the Department.

20. For the Tribunal’s purposes, it is evident that at the very least the applicant has been misadvised concerning the expiry date of her previous substantive subclass 417 Working Holiday visa. The Tribunal accepts the applicant’s evidence that she relied upon this advice. It is furthermore very clear that the applicant’s reliance upon advice which was ultimately incorrect has caused her substantial detriment, to the effect that the applicant could not meet relevant time of application criteria once her last substantive visa expired. The Tribunal gives weight to evidence that the applicant had sought to be proactive in terms of the proposed student visa application as far back as August 2015, and with the correct advice would have readily been in a position to lodge the present application prior to the end of 1 November 2015 had she understood that this was a critical deadline in order to meet relevant criteria.

21. The Tribunal also accepts the evidence provided that the applicant is in a long-term relationship with Mr Fabrizio Grazi, whose visa pathway has been the same as the applicant’s, but for the fact that Mr Grazi had lodged his own student visa application prior to the expiry of his previous substantive visa. The Tribunal accepts that circumstances of  the applicant departing from Australia with either involve separation of this couple or require the applicant’s partner to abandon his own study plans in order to return to Italy with the applicant. Significantly also, the applicant, having lodged the present application whilst not the holder of a substantive visa, currently only holds a bridging C visa which will entail her facing a three year exclusion period under schedule 4 risk factors in the event that she seeks to return to Australia on a student visa from offshore in the three year period following any departure.

22. Although it will be a matter for the Minister’s personal consideration upon any referral by the Department, the Tribunal considers that the following guidelines for intervention appear on their face to be engaged by the unique and exceptional circumstances raised by the applicant:

    ·circumstances that the legislation does not anticipate

    ·clearly unintended consequences of legislation

    ·circumstances where the application of relevant legislation leads to unfair or unreasonable results in a particular case

23. Accordingly, considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal will refer the matter to the Department.

    DECISION

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

    Don Lucas
    Member