1603032 (Migration)

[2016] AATA 4587

1603032 (Migration) [2016] AATA 4587 (24 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AVISHEK GHOSH

CASE NUMBER:  1603032

DIBP REFERENCE(S):  CLF2016/6335

MEMBER:Geraldine Hoeben

DATE:24 October 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 24 October 2016 at 3:19pm

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 17 February 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, who arrived in Australia on 12/02/11, applied for the visa on 22/01/2016 to undertake study in Australia. At the time of the application he held a VF- 476 visa.

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 (2). Broadly speaking, for visa applications made in Australia, it requires the applicant to be the holder of a substantive visa of a pre-requisite type.

4. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.573.211(2) because he did not hold a pre-requisite visa necessary for the grant of a 573 visa onshore.

5. The applicant appeared before the Tribunal on 20 October 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 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(1) - (3)(b);

   ·an applicant meets the requirement of this sub cl. if the applicant is the holder of one of the classes or subclasses of the following …………………….. (ie pre-requisite visas): 573.211(2); 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 of sub cl. (2).  As such, the applicant must meet all the requirements of cl 573.211 including sub cl. (2) set out above.

9. The last visa held by the applicant was a skilled graduate visa VF - 476 which is not a pre-requisite visa for the grant of a 573 visa onshore. Particulars of the applicant’s case were given to him which essentially summarised the delegate’s findings contained within his decision which was attached to the present application.

10. The Tribunal then raised with the applicant the threshold issue which related to the question that, at the time he applied for the 573 visa, he was not the holder of a visa of the type as specified in regulation (reg) 573.211 (2).

11. The Tribunal summarised for the applicant the following particulars:

    ·     The 573 visa application was lodged on 22/01/16;

    ·     The visa the applicant held was a VF- 476 was not one as required within reg 573.211 (2); and

    ·     The issue of the 28 day requirement was not dealt with given the threshold nature of the non-compliance above, being that the visa held by the applicant was not a pre-requisite visa as required by sub cl.573.211 (2).

12. The applicant replied that he was surprised that he had not been given a warning or some sort of notice as to this legislative requirement and gave analogy which essentially reflected this notice/warning as a general principle which he believed should have been followed by the department.

13. While the Tribunal sympathised with the applicant it stated that ignorance of the law could not act as a defence. It also informed him that this was a strict liability requirement and that the Tribunal had no legislative discretion to exercise in the circumstances of this case.

14. As the applicant did not come within this threshold requirement it follows that the Tribunal does not now needs to deal with any further issues related to this matter.

15. In summary, on the evidence before the Tribunal, the current visa application was made on 22/01/16.

16. The applicant’s last substantive visa was a VF- 476 visa which was not a pre-requisite visa of the type required for a student visa 573 lodged onshore.

17. On the basis of the above, the Tribunal finds that the current review application did not comply with reg 573.211(2). Accordingly, the applicant does not meet the pre-requisite visa requirements as set out in cl.573.211(2).

    Concluding paragraphs

18. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.573.211(2), and therefore, does not meet the requirements of cl.573.211 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.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.

    Geraldine Hoeben
    Member