1609998 (Migration)

[2016] AATA 4585

1609998 (Migration) [2016] AATA 4585 (19 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sugneeswari BALAKRISHNAN

CASE NUMBER:  1609998

DIBP REFERENCE(S):  BCC2016/1921478

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 4:22pm

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 June 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 31 May 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. Broadly speaking, for visa applications made in Australia, it requires the applicant to be the holder of a substantive visa of a type and in circumstances prescribed, or to have made the visa application within 28 days of the last substantive visa ceasing (the 28 day rule).

4. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.572.211.

5. The applicant appeared before the Tribunal on 19 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.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).

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 stated that:

   a.She attempted to apply for the visa on 26 May 2016 but included authorisation to deducted a fee in her application form of only either $520 or $580, she cannot remember the exact amount;

   b.She was informed by the Department the next day that the fee she had authorised the Department to deducted was insufficient;

   c.On 31 May 2016 she submitted a fresh application form which included authorisation to deducted the correct fee - $1250;

   d.The last substantive visa held was a student visa which expired on 28 April  2016;

   e.She agreed she held no visa on 29 April 2016 and held no substantive visa on either 26 May 2016 or 31 May 2016.

10. The applicant was then informed that:

    a.There are alternative options to meeting the mandatory criterion in cl.572.211; however, all the options other than cl.572.211(3), require that at substantive visa is held on the day of visa application;

    b.Clause 572.211(3) is the only option which permits satisfaction of cl.572.211 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.572.211 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.572.211(3) or its counterparts for the alternative subclasses of the Class TU visa.

11. The tribunal suggested to the applicant:

    a.that it appeared that the full visa application fees were not paid until 31 May 2016, which was more than 28 days after the last substantive visa ceased on 28 April 2016;

    b.that it appeared the applicant did not meet cl.572.211(3)(c) because more than 28 days had elapsed between the relevant dates above; and

    c.that the applicant could not meet cl.572.211 by virtue of the other alternatives that it offers because on the evidence no substantive visa of any kind specified in cl.572.211 was held on the day the visa application was made.

12. It was reemphasised to the applicant that the tribunal had no discretion in the application of cl.572.211(3) or its equivalents for other subclasses.

13. The tribunal finds that the applicant’s last substantive visa expired on 28 April 2016, that the applicant did not hold a substantive visa from that day, and that the applicant did not make a valid visa application until 31 May 2016, and that more than 28 days had elapsed between when the last held substantive visa expired and when the present visa application was made. 

14. These findings are consistent with the information contained in the copy of the delegate’s decision the applicant gave to the tribunal.

15. 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.572.211(3)(c)(ii).  On the contrary, the applicant’s evidence is that the last held substantive visa expired.

16. As a result, the applicant does not meet cl.572.211(3)(c) and cl.572.211(3) more generally. 

17. 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.572.211.

18. The applicant does not meet cl.572.211(1) and does not meet cl.572.211 as a whole.

19. As suggested at hearing, there are equivalent criteria to cl.572.211 for each of the other subclasses of the Class TU visa, and as the requirements of cl.572.211 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

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

    Adrian Ho
    Member