Akhtar (Migration)

[2020] AATA 3162

Akhtar (Migration) [2020] AATA 3162 (25 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nabeel Akhtar

CASE NUMBER:  1719609

HOME AFFAIRS REFERENCE(S):          BCC2017/901595

MEMBER:Jennifer Cripps Watts

DATE:25 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·Public Interest Criteria 4013 of Schedule 4 to the Regulations for the purpose of satisfying cl.500.217 of Schedule 2 to the Regulations

Statement made on 25 June 2020 at 5:13pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk factor – 3 years must have passed since the cancellation of a previous visa – applicant applied for another visa before cancellation – review process decided after 3 years passed – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 116

Migration Regulations 1994, Schedule 2, cl 500.217; Schedule 4 Public Interest Criterion 4013

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 and Border Protection (the delegate) on 9 August 2017 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 7 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. 

3. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of a family unit.  Any members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.   All criteria must be satisfied at the time a decision is made on the application.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not meet Public Interest Criteria (PIC) 4013. In summary, if an applicant is subject to PIC 4013, which applies in this applicant’s case, they cannot be granted a visa unless 3 years have passed since the cancellation of their previous visa, unless the applicant can demonstrate that there are compelling circumstances affecting the interest of Australia; or compassionate or compelling circumstances affecting the interest of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justifying the granting of the visa within the relevant 3 year period.

5. The applicant’s previous visa, a Subclass 573 student visa, was cancelled on 14 March 2017 and the visa that is the subject of this review was refused on 9 August 2017 because 3 years had not passed since the previous visa was cancelled and the applicant did not claim or provide evidence of any compelling or compassionate circumstances such that the PIC 4013 requirement should be waived. 

6. The applicant appeared before the Tribunal, by phone, on 25 June 2020, to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.  The Tribunal is satisfied that the quality of the audio was good and that those participating in the hearing could be heard clearly.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue on the review is whether the applicant meets PIC 4013 as required under cl.500.217(1) of Schedule 2 to the Regulations. This is the same determinative issue on which the visa was refused.

9. Relevantly, cl.500.217(1) requires that the applicant, among other things, satisfies PIC 4013. Subclause 4013(1) requires that that a person affected by a risk factor (relevant in this case, PIC 4013(1A)(a), because the visa was cancelled under s.116 of the Act) cannot be granted a visa unless 3 years have passed since the cancellation of their previous visa, unless the applicant can demonstrate that there are compelling circumstance affecting the interest of Australia; or compassionate or compelling circumstances affecting the interest of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justifying the granting of the visa within the relevant 3 year period.

10. After receiving notification from the Department of the intention to cancel his previous Subclass 573 student visa, but before the visa was cancelled, the applicant applied for the Subclass 500 student visa that is the subject of this review, on 7 March 2017. It is not in dispute that on 14 March 2017 the applicant’s previous Subclass 573 student visa was cancelled. Essentially this was because 3 years had not passed since his Subclass 573 visa was cancelled. On this basis, the applicant’s Subclass 500 visa was refused, on 9 August 2017, because he did not satisfy PIC 4013, as required under cl.500.217(1) of Schedule 2 to the Regulations and there were no compelling or compassionate circumstances claimed to justify waiving the requirement of PIC 4013 for the grant of the visa.

11. At the time of this decision, it has been more than 3 years since the applicant’s previous Subclass 573 student visa was cancelled under s.116 of the Act, on 14 March 2017. 

12. Therefore, the applicant satisfies PIC 4013. 

13. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

14. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Public Interest Criteria 4013 of Schedule 4 to the Regulations for the purpose of satisfying cl.500.217 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT A - Schedule 2 to the Migrations Regulations 1994

    500.217

    (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

    (2)  If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.

    (3)  If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

    (4)  The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.

    (5)  The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.

    ATTACHMENT B - Schedule 4 to the Migration Regulations 1994

    Public Interest Criteria 4013

    (1)   If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A)or (3):

    (a)  the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or  

    (b)  the Minister is satisfied that, in the particular case:

    (i)  compelling circumstances that affect the interests of Australia; or

    (ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa within 3 years after the cancellation or determination.

    (1A)  A person is affected by a risk factor if a visa previously held by the person was cancelled:

    (a)  under section 109, paragraph 116(1)(d), subsection 116(1AA) or (1AB) or section 133A of the Act; or

    (b)  under section 128 of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) of the Act applied to the person; or

    (c) under section 133C of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) or subsection 116(1AA) or (1AB) of the Act applied to the person.

    (2)  A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

    (a)  because the person was found by Immigration to have worked without authority; or

    (b)  if the visa was of a subclass specified in Part 2 of this Schedule — because the person did not comply with a condition specified in that Part in relation to that subclass; or

    (c)  if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule — because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or

    (ca)  because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

    (d)  because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m), (o), (oa) or (ob) applied to the person.

    (2A)  A person is affected by a risk factor if a visa previously held by the person was cancelled under section 137J of the Act.

    (3)  A person is affected by a risk factor if a visa previously held by the person was cancelled because the Minister was satisfied that a ground mentioned in paragraph 116(1)(e) of the Act applied to the person.