ANGAPPA NARENDRAN (Migration)

[2017] AATA 3134

ANGAPPA NARENDRAN (Migration) [2017] AATA 3134 (11 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SARAVANA KUMAR ANGAPPA NARENDRAN

CASE NUMBER:  1612475

DIBP REFERENCE(S):  CLF2016/30633

MEMBER:Geraldine Hoeben

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 July 2017 at 2:31 pm (NSW time)

DATE OF WRITTEN RECORD:               18/09/17

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 18 September 2017 at 11:21am

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – Hold a specified substantive visa – No exceptional circumstances – Decision under review affirmed

LEGISLATION
Migration Regulations 1994, rr 1.40A Schedule 2 cls 572.211, 572.227

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 26 July 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 11/07/17 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

3. The applicant, who arrived in Australia on 21/01/16 on a 600 visitor visa, applied for the student visa on 16 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.

4. 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 particular type or make the visa application within 28 days of the last substantive visa ceasing.

5. The delegate refused to grant the visa because the applicant did not hold a relevant visa to satisfy the requirements of cl 572.211 by reference to cl 572.227 of Schedule 2 to the Regulations. As a result the applicant would need to satisfy a relevant threshold test. The threshold test faced by the applicant was to establish exceptional reasons for the grant of the student visa (the relevant clause of the regulation attached to this decision). The delegate concluded, in this case, that the applicant did not satisfy such a test.

6. The applicant was represented in relation to the review by his registered migration agent (MA) who did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 then exceptional reasons must first be made out for the grant of the visa.

9. The last substantive visa must be of a specified type, which relevantly includes a student visa: cl.572.211(3)(b); If the applicant does not hold the relevant visa then exceptional reasons must be satisfied.

10. The Tribunal gave a brief summary of what exceptional reasons may be. It gave an example where argument could be made out that bilateral relations would be enhanced between Australia and India in the form of the applicant’s participation in some type of student  scholarship or student mexchange program. It explained that this was only an example and could he think of any exceptional situation relating to himself which might satisfy such a test. There was a pause but he replied that he could not think of any.

11. In this case, the visa application was made in Australia, and the evidence before the Tribunal, and agreed to by the applicant, is that the applicant did not hold a substantive visa of a type specified in the criteria (see attachment).  As such, the applicant must meet the requirements of subclause (3) set out above.

    Was the last substantive visa of the specified type?

12. During the course of the hearing  and as indicated above, the applicant agreed that the last substantive visa held by him was a tourist 600 visa which does not meet the requirements of cl.572.211(3)(b). This is not a visa of the class required by the applicant in his circumstances of this application.

13. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.572.211, and therefore, does not meet the requirements of cl.572.227 of Schedule 2 to the Regulations by virtue of the fact that the applicant does not satisfy the exceptional reasons test.

14. 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

15. The Tribunal affirms the decision under review.

    Geraldine Hoeben
    Member

    
    

    Criteria not Met

    [572.227]    If:

    (a)      the application was made in Australia; and

    (b)      subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

    (c)      at the time of application, the applicant met the requirements of clause 572.211:

    [(i) amended by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]

    (i)      as the holder of a visa of one of the following classes or subclasses:

    (A)      Border (Temporary) (Class TA);

    [(B) omitted by MA(ROP)R 2014 SLI 2014, 30 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    (C)      Cultural/Social (Temporary) (Class TE);

    (D)      Educational (Temporary) (Class TH);

    (E)      Electronic Travel Authority (Class UD);

    [(F) omitted by MA(ROP)R 2014 SLI 2014, 30 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    [(G) omitted by MA(ROP)R 2014 SLI 2014, 30 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    [(H) omitted by MA(ROP)R 2014 SLI 2014, 30 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    [(I)      Long Stay (Visitor) (Class TN); omitted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]

    (IA)      Maritime Crew (Temporary) (Class ZM);

    (J)      Medical Practitioner (Temporary) (Class UE);

    (K)      Retirement (Temporary) (Class TQ);

    [(L)      Short Stay (Visitor) (Class TR); omitted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]

    (LA)      Superyacht Crew (Temporary) (Class UW);

    [(M) omitted by MA(ROP)R 2014 SLI 2014, 30 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]

    (N)      Temporary Business Entry (Class UC);

    [(NA) substituted by SLI 2013, 32 with effect on and from 23/03/2013 - new text - LEGEND note]

    (NA)      Subclass 400 (Temporary Work (Short Stay Activity));

    [(NB) substituted by SLI 2013, 32 with effect on and from 23/03/2013 - previous (NA) - LEGEND note]

    (NB)      Tourist (Class TR);

    [(NC) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - previous (NC) - LEGEND note]

    (NC)      Visitor (Class TV);

    [(O) amended by SLI 2012, 238 with effect on and from 24/11/2012 ('or' omitted) - LEGEND note]

    (O)      Working Holiday (Temporary) (Class TZ);

    [(P) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]

    (P)      Temporary Work (Long Stay Activity) (Class GB);

    [(Q) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]

    (Q)      Training and Research (Class GC);

    [(QA) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]

    (QA)      Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;

    [(R) inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]

    (R)      Temporary Work (Entertainment) (Class GE);

    [(S) amended by SLI 2013, 32 with effect on and from 23/03/2013 ('or' omitted) - inserted by SLI 2012, 238 with effect on and from 24/11/2012 - LEGEND note]

    (S)      Special Program (Temporary) (Class TE);

    [(T) inserted by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]

    (T)      Subclass 600 (Visitor); or

    (ii)      as the holder of a special purpose visa; or

    (iii)      as the holder of a visa of one of the following subclasses:

    (A)      Subclass 303 (Emergency (Temporary Visa Applicant));

    (B)      Subclass 427 (Domestic Worker (Temporary) — Executive);

    [(BA) amended by SLI 2013, 33 with effect on and from 23/03/2013 - LEGEND note]

    (BA)      Subclass 485 (Temporary Graduate);

    (C)      Subclass 497 (Graduate — Skilled); or

    (iv)      as a person:

    (A)      who was not the holder of a substantive visa; and

    (B)      who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);

    the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.