1601111 (Migration) - [2016] AATA 4454

1601111 (Migration) [2016] AATA 4454 (22 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr BANGUS YOUSSOUF ADAMU
CASE NUMBER:  1601111
DIBP REFERENCE(S):  CLF2015/77620
MEMBER:Gina Towney
DATE:22 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 22 September 2016 at 1:29pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 January 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 December 2015 to undertake study in Australia. The courses listed in the application were a Diploma and an Advanced Diploma of Business Management, with overall course dates from 11 January 2016 to 7 January 2018.
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.
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 substantive visa ceasing.
The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.572.211 because the applicant was not the holder of a substantive Visa. More specifically, the delegate found the applicant’s previous substantive Visa (being a Visitor Visa subclass 600) ceased on 2 December 2015, and he made a valid application for the current student Visa on 9 December 2015.
Submissions provided by the applicant prior to hearing record that the applicant had attempted to lodge his student Visa application on 2 December 2015, had been advised by the department that the fee lodged was insufficient on 4 December 2015, and had made the relevant payment on 9 December 2015.
The applicant appeared before the Tribunal on 22 September 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, although the agent did not attend the hearing.
At hearing the applicant gave evidence that he had attempted to lodge his Student Visa application on 2 December 2015, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read 1601111 (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] AATA 4454
Decision Date: 22 September 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered whether an applicant for a Student (Temporary) (Class TU) visa satisfied criterion cl.572.211. The applicant had applied for the visa while in Australia and did not hold a specified substantive visa at the time of application. The dispute centred on whether the applicant met the alternative requirements of cl.572.211(3), which involve holding a specific type of last substantive visa, making the application within a prescribed timeframe, and satisfying Schedule 3 criterion 3005.

The Tribunal was required to determine the date on which the applicant's visa application was validly made, given that the applicant's last substantive visa, a Visitor visa, had expired on 2 December 2015. The applicant initially lodged an application on 2 December 2015 but was subsequently advised by the department that the application was invalid due to an outstanding fee. The fee was paid on 9 December 2015. The Tribunal also had to consider whether the applicant's last substantive visa, a Visitor visa, was of a specified type as required by cl.572.211(3)(b).

Applying the principles from *Butcher v MIMIA* [2005] FMCA 880, the Tribunal reasoned that for non-internet applications, the fee requirement is met when the department is placed in a position to access the funds within the prescribed period. As the applicant's application was not made via the internet, and the department was only able to access the funds on 9 December 2015 after receiving updated financial details, the Tribunal concluded that the valid application was made on 9 December 2015. Furthermore, the Tribunal found that the applicant's last substantive visa, a Visitor visa, did not meet the specified type requirement under cl.572.211(3)(b). Consequently, the Tribunal determined that the applicant did not satisfy cl.572.211(3) and, by extension, cl.572.211. The Tribunal also noted that other subclasses within the Class TU visa had similar requirements, which the applicant also failed to meet.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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. The applicant’s last substantive visa ceased to be in effect on 2 December 2015. The issue in the current case is when the valid application was made. In considering this the Tribunal accepts the applicant’s evidence that he initially made an application on 2 December 2015, and was then advised by the department on 4 December 2015 that his application was invalid and he was required to make a further payment, and that he did not make that payment until 9 December 2015. When the department is taken to have received the fee depends on how the application was made. For all applications, other than internet applications, the requirement to pay the fee will be taken to have been met, when the applicant puts the department in the position to access the funds within the prescribed period, provided that those funds are in fact accessed at a later time (Butcher v MIMIA [2005] FMCA 880). On the basis of the facts, as accepted by the Tribunal, as the applicant did not make an Internet application, the department were placed in the position to access the funds when it received the review applicant’s updated financial details on 9 December 2015. Therefore, on the evidence before the Tribunal, the current visa application was made on 9 December 2015.Was the last substantive visa of the specified type? The last substantive visa held by the applicant was a Visitor visa which does not meet the requirements of cl.572.211(3)(b). 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.