1601724 (Migration)

[2016] AATA 4303

1601724 (Migration) [2016] AATA 4303 (19 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr IBRAHIM ALFAWZAN

CASE NUMBER:  1601724

DIBP REFERENCE(S):  BCC2016/206277

MEMBER:Mary-Ann Cooper

DATE:19 August 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 19 August 2016 at 8:55am

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 25 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 14 January 2016 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 delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.573.211 because he did not hold a specified visa at the time of application.

5. The applicant appeared before the Tribunal by telephone on 4 August 2016 to give evidence and present arguments. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies cl.573.211. That criterion, at cl.573.211(1), 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 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).

8. 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 in cl.573.211(2),(4) or (6).  As such, the applicant must meet the requirements of subclause (3) set out above.

   Was the last substantive visa of the specified type?

9. As recorded in the delegate’s decision, a copy of which was provided with the review application, at the time of visa application the applicant did not hold a substantive visa and his last substantive visa was not one of those listed in cl.573.211(3)(b). On this basis the delegate found the applicant did not satisfy cl.573.211 and the application was refused.

10. Prior to the hearing the applicant wrote to the tribunal advising that at the time of application he held a Bridging Visa E, which he asserted was a substantive visa.

11. At the hearing he explained that he had come to Australia to study, initially completing an English language course. He had been in Australia on a scholarship but was having trouble organising his health insurance cover for his next visa application (his current Master’s degree) and had decided to apply for a tourist visa while various matters were sorted. Towards the expiry of this visa he said he went to the Department and was told he could apply for a student visa. He had not realised that he would not be eligible for such a visa.

12. The tribunal outlined the provisions of cl.573.211, in particular, that a ‘substantive visa’ is relevantly defined in s.5 of the Act as follows:

    Substantive visa means a visa other than:

    (a)  a bridging visa; or

    (b)  a criminal justice visa; or

    (c)  an enforcement visa.

13. It explained that a bridging visa is therefore not a ‘substantive visa’ for the purposes of the Act. It also told the applicant that unfortunately it had no discretion in this matter but noted that the applicant can still make a request directly to the Minister if he thought his circumstances came within the relevant guidelines.

14. On the basis of the information and evidence before the tribunal, the applicant did not hold a substantive visa at the time of this application. He therefore meets cl.573.211(3)(a).

15. In addition, cl.573.211(3)(b) requires that the last substantive visa held by the applicant was a student, special purpose, subclass 303, subclass 457 or a Diplomatic (Temporary) (Class TF)  visa. As confirmed by Departmental records and the applicant at the hearing, the last substantive visa  held by the applicant was a subclass FA 600 visa. In the circumstances he does not satisfy cl.573.211(3)(b) and therefore cannot meet cl.573.211(3) as a whole.

16. The Tribunal finds that on the day this visa application was made the applicant did not hold a substantive visa and the last substantive visa held was not listed in cl.573.211(3)(b). He therefore does not meet cl.573.211(3). On the evidence before the Tribunal, and for the reasons above, none of the alternatives in cl.572.211(2),(4), or (6) apply to his circumstances.

17. The Tribunal therefore finds that the applicant does not satisfy cl.573.211(1), and it follows, does not meet the requirements of cl.573.211 of Schedule 2 to the Regulations.

    CONCLUSION

18. For these reasons, the decision under review must be affirmed.

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.573.211(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.

    Mary-Ann Cooper
    Member