1607918 (Migration)

[2016] AATA 4708

1607918 (Migration) [2016] AATA 4708 (29 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asif Moazzam

CASE NUMBER:  1607918

DIBP REFERENCE(S):  bcc2016/1433385

MEMBER:Karen Synon

DATE:29 November 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 29 November 2016 at 1:08pm

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 11 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 11 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 572.

3. 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(3) which requires the applicant to satisfy the Schedule 3 criterion 3005.

4. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.572.211 because the time of lodgement (on 11 April 2016) he was not holding a substantive visa and the last substantive visa he was previously granted was on the basis of Schedule 3 criteria and therefore he did not satisfy cl.572.211(3)(d).

5. The applicant appeared before the Tribunal on 29 November 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.572.211(3)(d).  This criterion requires that the applicant satisfies the Schedule 3 criterions 3005 which states:

   3005

   [3005]   A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

   (a)      this Schedule; or

   (b) Schedule 6 of the Migration (1993) Regulations; or

   (c)      regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations

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 cl.572.211(3)

   Was the last substantive visa of the specified type?

9. The last substantive visa held by the applicant was a Student (Temporary) (Class TU) 573 Higher Education Sector visa which meets the requirements of cl.572.211(3)(b).

   Was the visa application made within 28 days of the last substantive visa ceasing?

10. On the evidence before the Tribunal, the current visa application was made on 11 April 2016.

11. The applicant’s last substantive visa ceased to be in effect on 15 March 2016.  On this basis, the Tribunal finds that the application was made within 28 days after the last substantive visa ceased to be in effect  Accordingly, the applicant meets cl.572.211(3)(c).

    Is criterion 3005 met?

12. To meet cl.572.211(3)(d), the applicant must satisfy Schedule 3 criterion 3005 which requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations or Schedule 6 to the Migration (1993) Regulations; or r.35AA or r.42(1A) or (1C) of the Migration (1989) Regulations.

13. Throughout the course of the review the applicant provided the following documents:

    Evidence in relation to his father’s health condition dated 5 November 2016, March 2016; November 2009 (or possibly November 2000), February 2001 and October 2000 and November 2009 (or possibly November 2000),

    The applicant provided a letter in which he relevantly stated:

    oHe was unable to lodge his visa within the required timeframe due to emotional turmoil as his father was going through serious surgery.

    oBeing an elder among his siblings he took responsibility to handle them and was constantly in touch with them through the phone and on Skype.

    oHe was totally caught up in this situation and could not pay emphasis [to lodging within] the legitimate timeframe.

    oHe pays the upmost respect the laws, rules and regulations and during his 3 years stay has been a law-abiding citizen.

    oHe was unaware of the fact that he cannot avail 28 days once again.  Had he known the he would have applied for the visa within the legitimate timeframe.

    oHis personal circumstances and unawareness of the law that resulted in the refusal of his visa.

    oHe came to Australian on a student visa 3 years ago with an ambition to excel in his chosen field and acquire the best of knowledge and training.  He successfully completed his degree and wants to finesse his skills and knowledge but the visa rejection impedes him in chasing his dreams of choosing the best profession in the engineering field.  It is going to affect his career and is a great shock for him and his family.

14. At the hearing the applicant gave evidence that his last substantive visa ended on 15 March 2016 and that he applied for this visa on 11 April 2016.  He was not aware that he could not rely on the Schedule 3 criteria twice but understands this now.  He said he applied for the visa late because his father was very unwell and his father was supporting him financially and he could not go to the bank to get the documents.  The applicant said he knows he made a mistake and he was supposed to lodge (the visa application) before March but his father could not go to the bank and his mother could only withdraw limited amounts on his behalf.  The applicant said he is a genuine student and has finished his Masters in Computer Networking and just wants to study some more now.  The last time he applied or a visa late it was due to issue with the transfer of money.

15. The information before the Tribunal as detailed in the primary decision, a copy of which the applicant provided to the Tribunal; information that was also confirmed by the applicant at the hearing, is that he was previously been granted a visa on the basis of having satisfied the Schedule 2005 criteria when he lodged a visa late. Accordingly, the applicant does not satisfy criterion 3005 and the requirements of cl.572.211(3)(d).

16. While the Tribunal has considered the applicant’s evidence and submissions detailed above in relation to his father’s illness and the difficulties this presented for him in providing the requiring financial documents to support his visa application, as explained to the applicant at the hearing, it has no discretion in this matter.

17. 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.

18. 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

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

    Karen Synon
    Member

    
    

    Relevant Extract from Migration Regulations

    [572.211] (3)      An applicant meets the requirements of this subclause if:

    (a)      the applicant is not the holder of a substantive visa; and

    (b)      the last substantive visa held by the applicant was:

    (i)      a student visa; or

    (ii)      a special purpose visa; or

    (iii)      a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

    (iv)      a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

    (v)      a Subclass 497 (Graduate — Skilled) visa; and

    (c)      the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:

    (i)      the day when that last substantive visa ceased to be in effect; or

    (ii)      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:

    (A)      the day when that last substantive visa ceased to be in effect; and

    (B)      the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal's decision; and 

    (d)      the applicant satisfies Schedule 3 criterion 3005.

    3005

    [3005]   A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)      this Schedule; or

    (b) Schedule 6 of the Migration (1993) Regulations; or

    (c)      regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.