1601037 (Migration)

[2016] AATA 4857

1601037 (Migration) [2016] AATA 4857 (5 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sashim Maskey

CASE NUMBER:  1601037

DIBP REFERENCE(S):  CLF2015/67776

MEMBER:Gabrielle Cullen

DATE:5 September 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 05 September 2016 at 2:49pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement for visa application to be made within 28 days of last substantive visa expiring – Visa application made outside of required time period – Tribunal has no discretion where application made out of time

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.40A, Schedule 2, cl 573.211(3), Schedule 3 Criterion 3005

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 12 January 2016 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 28 October 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 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.

5. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.573.211 because the applicant applied for a student visa on 28 October 2015 and the previous visa he held was a student visa that ceased on 30 August 2015. The application was refused as it was made more than 28 days after the last student visa expired and clause 573.211 was not met.

6. The applicant applied to the Tribunal for review of the decision of the Department on 29 January 2016. He attached the Department decision record.

7. The applicant appeared before the Tribunal on 5 September 2016 to give evidence and present arguments. The Tribunal described the requirements of cl.573.211, and that his previous visa, a student visa, ceased on 30 August 2015 and he did not apply for a further student visa until 28 October 2015. It noted that it has no discretion in the matter if it is found he applied for the student visa more than 28 days after the expiry of his last student visa.

8. The applicant stated that he is currently studying a Bachelor of Business and is a genuine student. He said it was a mistake as to why he did not apply in time. He said he became confused as he thought his visa expired on 21 November 2015 but rather that was his passport. He said the Embassy told him it would take three months to obtain a new passport, and once he realised it was quicker to apply in Nepal, he returned home to Nepal and because of some damage to his property from the earthquake. He said he then went to Qatar to see his parents and continued to study and work part time on return and no one advised him of the date of his visa expiry. He kept repeating that he is a genuine student who wants to complete his course which finishes in 2017 and that this occurred due to a mistake. He also submitted a letter of offer from King’s Own Institute dated 25 February 2016 to study a Bachelor of Business.

9. He accepted that he applied after 28 days from the expiry of his former student visa.

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.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 Migration Review 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).

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 at the time of application.  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.573.211(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 28 October 2015. The applicant’s last substantive visa ceased to be in effect on 30 August 2015.

15. It finds 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. It accepts his reasons as to why he did not apply within 28 days, 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.573.211(3)(c).

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.

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.573.211(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.

    Gabrielle Cullen
    Member