1607532 (Migration)

[2016] AATA 4586

1607532 (Migration) [2016] AATA 4586 (19 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Humaid Abdulla Mohamed Abdulla Al Madhani

CASE NUMBER:  1607532

DIBP REFERENCE(S):  BCC2016/1463266

MEMBER:Adrian Ho

DATE:19 October 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 October 2016 at 6:03pm

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 4 May 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 13 April 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 (the 28 day rule).visa ceasing.

4. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.573.211.

5. The applicant appeared before the Tribunal on 6 September 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(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.  As such, the applicant must meet the requirements of subclause (3) set out above.

9. At hearing, the applicant state that:

   a.He attempted to apply for the visa by post dispatched on 23 March 2016 and was advised on 6 April 2016 that the application was not valid because he had authorised the deduction of $550 for the application fee, whereas the current amount was $1250 for a second application onshore (see also his statement at f.70);

   b.He completed the form again and sent it by registered mail on 8 April 2016;

   c.The last substantive visa held expired on 15 March 2016 after which no substantive visa was held.

10. The applicant was then informed that:

    a.There are alternative options to meeting the mandatory criterion in cl.573.211; however, all the options other than cl.573.211(3), require that at substantive visa is held on the day of visa application;

    b.Clause 573.211(3) is the only option which permits satisfaction of cl.573.211 where no substantive visa was held on that day; however, it requires in the circumstances that the visa applicant was made within 28 days after the day when the last substantive visa ceased to be in effect (the 28 day rule);

    c.There are equivalent criteria to cl.573.211 for each of the other subclasses of the Class TU visa which each require that a specified substantive visa is held on the day of visa application, or else that the 28 day rule is satisfied, and if the 28 day rule is not satisfied, the applicant would not satisfy the corresponding mandatory criterion for all applicable subclasses;

    d.The tribunal has no discretion in the application of cl.573.211(3) or its counterparts for the alternative subclasses of the Class TU visa.

11. The tribunal suggested to the applicant:

    a.the Department indicated in the copy of decision he provided to the tribunal (f.9) that it did not receive authorisation to deduct the visa application charge of $1250 until at the earliest, 13 April 2016, which is when it considers a valid application to have been made;

    b.that it appeared the applicant did not meet cl.573.211(3)(c) because more than 28 days had elapsed between 15 March 2016 and 13 April 2016; and

    c.that the applicant could not meet cl.573.211 by virtue of the other alternatives that it offers because on the evidence the bridging visa held on the day the visa application was made is not a substantive visa specified in cl.573.211.

12. It was reemphasised to the applicant that the tribunal had no discretion in the application of cl.573.211(3) or its equivalents for other subclasses.

13. The tribunal finds that the applicant’s last substantive visa expired on 15 March 2016, and that the applicant did not hold a substantive visa from that day.

14. A visa application is made when it is received and is only valid when the visa application charge is paid: s.46(1)(ba).

15. A failure to authorise deduction of the full visa application charge leads to the Department not having authority to deduct the charge, which leads to the charge not being paid.

16. On the evidence, the Department only received an application in which authority to deduct the full application charge was included, on 13 April 2016, which is consistent with the applicant having dispatched it by post on 8 April 2016.

17. No valid visa application was made before 13 April 2016.

18. More than 28 days had elapsed between when the last held substantive visa expired and when the present visa application was validly made. 

19. There is no evidence that a tribunal review of a decision to cancel a substantive visa exists in this case, so as to engage cl.573.211(3)(c)(ii).  On the contrary, the applicant’s evidence is that the last held substantive visa expired.

20. As a result, the applicant does not meet cl.573.211(3)(c) and cl.573.211(3) more generally. 

21. As the applicant did not hold a substantive visa on the day the visa application was made, the applicant does not meet any of the other subparagraphs of cl.573.211.

22. The applicant does not meet cl.573.211(1) and does not meet cl.573.211 as a whole.

23. As suggested at hearing, there are equivalent criteria to cl.573.211 for each of the other subclasses of the Class TU visa, and as the requirements of cl.573.211 are not met because the 28 day rule is not met, the applicant does not satisfy the corresponding mandatory criterion for each of the other applicable subclasses.

    DECISION

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

    Adrian Ho
    Member