Isayed (Migration)

[2017] AATA 1858

Isayed (Migration) [2017] AATA 1858 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hanna B E Isayed

CASE NUMBER:  1613742

DIBP REFERENCE(S):  CLF2016/33596

MEMBER:Penelope Hunter

DATE:4 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 October 2017 at 5:21pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education Training Sector – Holder of substantive visa – Previous substantive visa not in specified criteria

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 572.211

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 23 August 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 30 May 2016. In his application the applicant set out that he proposed to undertake study in a package of courses including general English, English for academic studies, a diploma of leadership and management and an advanced diploma of leadership and management

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 or to have made the visa application within 28 days of the last substantive visa ceasing.

4. The delegate refused the visas on the basis that the first named applicant did not satisfy the requirements of cl.572.211 because at the date of the visa application he was not the holder of a substantive visa and the previous visa did not meet the requirements set out in that clause.

5. The applicant was invited to appear before the Tribunal on 27 September 2017 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s uncle Mr Karmeel Barham.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant was the holder of a Prospective Marriage subclass 300 visa, granted on 8 October 2015 and valid until 8 July 2016, at the time he applied for the student visa.

8. The issue in the present case is whether the applicant satisfies cl.572.211an extract of which is annexed to this decision. 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 Migration Review 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).

9. In this case, the visa application was made in Australia, and the evidence before the Tribunal is that the applicant  as the holder of a subclass 300 Prospective Marriage visa 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.

10. The last substantive visa held by the applicant was not a Special Purpose visa or a subclass 303, subclass 427, subclass 485 or subclass 497. His subclass 300 Prospective Marriage visa does not meet the requirements of cl.572.211(3)(b).

11. 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. The Tribunal understands the submissions of the applicant regarding his age and circumstances in his home country and that he wishes to undertake some study before he commits to marriage, however it is not a matter in which the Tribunal has discretion.

12. 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.

13. The Tribunal notes that there is no claim made by any of the secondary applicants that they are entitled to a visa in their own right. Accordingly they are dependent on the success of the first named applicant.

    DECISION

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

    Penelope Hunter

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.21 Criteria to be satisfied at time of application

    572.211

    (1)  If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

    (2)  An applicant meets the requirements of this subclause if the applicant is:

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

    (i)  Border (Temporary) (Class TA);

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

    (iv)  Educational (Temporary) (Class TH);

    (v)  Electronic Travel Authority (Class UD);

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

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

    (xi)  Retirement (Temporary) (Class TQ);

    (xiii)  Student (Temporary) (Class TU);

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

    (xv)      Temporary Business Entry (Class UC);

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

    (xvb)      Tourist (Class TR);

    (xvc)      Visitor (Class TV);

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

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

    (xviii)      Training and Research (Class GC);

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

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

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

    (xxi)      Subclass 600 (Visitor); or

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

    (c)      the holder of a special purpose visa; or

    (d)      the holder of a visa of one of the following subclasses:

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

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

    (iia)      Subclass 485 (Temporary Graduate);

    (iii)      Subclass 497 (Graduate — Skilled).

    [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.