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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. At hearing the applicant gave evidence that he had attempted to lodge his Student Visa application on 2 December 2015, and that he would have paid the full fee had he known what was required. The applicant also said there was some delay in paying the fee because he was away, and there was some delay in him being advised of the requirement to increase the fee by his advisor. The Tribunal accepts all of this evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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).

11. 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.

12. The applicant’s last substantive visa ceased to be in effect on 2 December 2015. 

13. 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.

14. 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).

15. 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.

16. 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?

17. The last substantive visa held by the applicant was a Visitor visa which does not meet the requirements of cl.572.211(3)(b).

18. 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.

19. 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

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

    Gina Towney
    Member