Joshi (Migration)

[2018] AATA 2944

Joshi (Migration) [2018] AATA 2944 (28 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sabina Joshi
Mr Prakash Dhamala

CASE NUMBER:  1704868

DIBP REFERENCE(S):  CLF2016/3608

MEMBER:Jennifer Cripps Watts

DATE:28 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 28 June 2018 at 3:40pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector visa) – Federal Circuit Court remittal – Applicant was not a holder of a substantive visa at the time of visa application – Applicants have been offshore – Last substantive visa was not of the specified type –  Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362A
Migration Regulations 1994, r.1.40A, Schedule 2, cls 570.232, 571.232, 572.231, 573.231, 574.231 575.231, 573.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 11 February 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 January 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 573.

3. The criteria for the grant of a Subclass 573 visa are set out in Part 573 of Schedule 2 the Regulations. Relevantly to this case they include cl.573.211. 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. An applicant can meet the requirements of cl.573.211(3) if they hold a certain type of substantive specified in cl.573.211(3)(b) and have lodged their application after the visa ceased, but within 28 days of the visa ceasing. The applicant’s last substantive visa a subclass 485 visa, which is not a visa specified in cl.573.211(3)(b) of Schedule 2 to the Migration Regulations 1994 (Cth). 

4. The applicants were represented in relation to the review by their registered migration agent, Mr Hemraj Bhatta, Migration Agent Registration Number 1466471.  They attended the hearing by phone on 21 June 2018.

   Visa Application and Refusal

5. The delegate in this case refused to grant the visas for Ms Joshi and Mr Dhamala on the basis that the primary visa applicant (the applicant) did not satisfy the requirements of cl.573.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a holder of a substantive visa at the time she made the visa application.

6. The applicant applied for the visa that is the subject of this review on 14 January 2016.  On that date, the applicants held subclass VC-485 temporary graduate visas that ceased on 14 January 2016.  The application was invalid because there were insufficient funds to pay the visa application charge.  On 18 January 2016, the applicant made another application and paid the fee, thereby making a valid application.  However, this was four days after her substantive visa ceased.  The visa was refused, on 11 February 2016.

   First Tribunal Review

7. The applicant applied for review to the Tribunal on 17 February 2016, within time, and provided the Tribunal with a copy of the delegate’s decision to refuse the visas.

8. The applicants appeared before the Tribunal on 18 October 2016 to give evidence and present arguments.  The primary applicant gave oral evidence, the secondary applicant elected not to.  The decision to refuse the visas was affirmed by the Tribunal.

   Federal Circuit Court

9. The applicant made an application for judicial review of the Tribunal’s decision and, on 10 March 2017, the Court made orders quashing the decision of the Tribunal, requiring the Tribunal to determine the application according to law and a costs order in favour of the applicants.

10. It was noted, by consent, that:

    a.“The first respondent accepts that the application must be allowed on the basis that the second respondent (at [10]) erred in finding that a Subclass 485 (Temporary Graduate) visa was a visa specified in cl.573.211(3)(b) of Schedule 2 to the Migration Regulations 1994 (Cth).”

    Second Tribunal Review on Remittal

11. The applicant’s matter was remitted by consent by the Court and, on 15 March 2017, the Tribunal received the remittal.  On 16 March 2017, a letter was sent to the applicants informing them that the Court had remitted their applications for review for reconsideration by the Tribunal.  They were advised their case would be allocated to a member in due course.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the first named applicant (the applicant) satisfies cl.573.211. 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.573.211(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.573.211(3)(c); and

    ·the applicant satisfies Schedule 3 criterion 3005: cl.573.211(3)(d).

14. 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.

15. There are notes on the Tribunal file that indicate the applicant made inquiries about progress of her matter in 2017 and 2018.  The applicant informed the Tribunal she would be offshore until around 13 April 2018 (she departed in June 2017).  On 18 April 2018, the applicant informed the Tribunal that both she and the secondary applicant remain offshore and cannot travel to Australia until a decision is made.

16. On 26 April 2018, the applicants’ matter was constituted to this member and, on 1 May 2018, the applicants were invited to attend a hearing scheduled on 21 June 2018.  The hearing invitation was also sent directly to the applicants as their previous migration agent’s registration had lapsed in September 2017 (Mr Bhattarai).  The applicant responded to the invitation on 6 May 2018 and said, essentially, that both she and Mr Dhamala are in Nepal and have no visa for travel to Australia and will not be able to attend the hearing in person.  She provided phone numbers for both herself and Mr Dhamala.  The applicant was advised that she and Mr Dhamala could attend by phone.

17. On 6 June 2018, the applicants’ new migration agent, Mr Hemraj Bhatta, requested access to written material under s.362A of the Act. Full access was given and the material was sent to him on 15 June 2018. Mr Bhatta notified the Tribunal he was having some trouble with his emails and requested a hearing postponement.

18. The request for postponement was considered and a response provided, giving reasons why it was not granted.  Essentially, this was because the applicants had been advised, as they were offshore, they could attend by phone.  They had been properly invited to their hearing and informed they should provide any written material they wished to be considered.  The representative was informed, on 18 June 2018, three days before the hearing, that the Tribunal appreciated he had only been appointed a few days before the request for postponement was made, but was of the view that the hearing could go ahead.  He was advised that he should provide any additional documentary evidence prior to the hearing and that any relevant matters would be discussed at the hearing.  He was advised that if he sought more time to provide additional documents at the hearing, the request would be considered. 

19. Following the notification on 18 June 2018 that the postponement would not be granted neither the applicants, nor their representative, provided any additional documentary evidence prior to the hearing or at the hearing.

20. The hearing went ahead.  The applicant’s visa situation was discussed with her.  She said that she just needed time to get a COE.  She was told that it appeared she had had plenty of time to do that and it was explained to her that it would seem, even if the applicant was enrolled and provided a COE, and that even if she met that criterion for the visa, she would also need to meet the remaining 573 criteria to be granted the visa and would, in addition, need to be onshore for the visa to be granted.  The applicant had earlier informed the Tribunal that she has been offshore since June 2017 that she does not hold a visa to permit entry to Australia, nor has she applied for one.

21. For the sake of clarity, the applicant was then reminded why her student visa had been refused in February 2016. It was explained by the member that the reason the visa had been refused at the time of application was because she did not satisfy the requirements of cl.573.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not a holder of a substantive visa at the time she made the visa application and did not come within any of the exceptions that would allow her to lodge a visa application within 28 days of her last substantive visa ceasing. This fact is not in dispute. The applicant’s last substantive visa, a subclass VC-485 visa (which is not a substantive visa class included in cl.573.211(3)(b)), ceased on 14 January 2016 and she lodged a valid application a few days later.

22. At the hearing applicant sought to explain why she lodged her application late.  She said, essentially, it because there was a problem with payment.  This has been considered but does not alter the fact that she simply did not hold a substantive visa when she lodged the (valid) subclass 573 student visa application on and did not therefore meet the criteria for the grant of the visa.  The applicant submitted in her oral evidence that the reason her visa was refused was due to her agent misguiding her.  The Tribunal has considered this and does not accept that the reason the visa was refused is because of poor migration advice. 

23. The applicant indicated that the nature of additional bad migration advice was that she was told that if she departed Australia, which she did in June 2017, she could apply for a student visa from her home country.  The member told her that, on the face of it, there seemed to be no reason why she could not apply for a student visa offshore.  She said she had approached a couple of colleges to obtain enrolment and had not been successful.

24. Prior to and at the hearing, the applicant’s representative provided no written submissions and said he wanted to give oral submissions at the hearing.  At the hearing, both the applicant and the representative requested more time to provide a COE.  The hearing was on a Thursday and the applicant said she needed two days – the Tribunal granted her three working days, until 5:00pm on Tuesday 26 June 2018.  On the basis of the extra time that was granted, the Tribunal told the representative that instead of oral submissions he could provide written submissions, adhering to the same deadline. 

25. The applicant was given every opportunity to provide additional documentary evidence and attend the Tribunal hearing to give oral evidence and arguments.  Whilst a hearing postponement was not granted, the applicant requested and was granted extra time after the hearing to provide documents, which she did.  The additional written evidence was provided and has been considered by the Tribunal:

    a.A COE issued on 26 June 2018 by the Excelsia College, indicating the applicant is enrolled in a Master of Business Administration (by coursework) from 17 September 2018 to 30 June 2020;

    b.A typed document entitled “Statement of Purpose”, which although unsigned and undated is accepted as being from the applicant.  In it she gives reasons why she could not continue study after he visa was refused in February 2016, including that her father was in his last stages of life and that she became mentally depressed.  She says that her previous migration agent’s registration lapsed (which the Tribunal confirmed it did, in September 2017, after the applicants had already departed Australia).  She has finished her bachelor degree but has been unable to get a “job as desired”, but indicates that she is employed and that after she finishes her Masters degree she will be promoted to a higher position with a better salary.  The applicant says that she can get a tourist visa to travel to Australia so she can be onshore if the student visa is granted.

    c.Submissions of the Mr Bhatta, including:

    i.The applicant is planning to lodge a visitor visa if the matter is remitted by the Tribunal

    ii.Because there is no longer a subclass 573 visa, could the matter be remitted so that the Department can assess the application against subclass 500 student visa criteria

26. Referring to Mr Bhatta’s submission that the applicant can be assessed against the subclass 500 criteria, the Tribunal makes the following observation. Part 500 of Schedule 2 to the Regulations was introduced by Migration Legislation Amendment (2016 Measure No.1) Regulation 2016, which provided that that amendments only apply in relation to visa applications made on or after 1 July 2016. The applicant’s visa application was made before 1 July 2016 (on 18 January 2016) and she cannot be assessed against the subclass 500 criteria.

27. All evidence, including the post-hearing submissions, has been considered. Nothing in the evidence overcomes the determinative issue upon which the visa was refused, which is that at the time of application the applicant did not meet cl.573.211 and does not therefore meet the criteria for the grant of the visa.

    Was the last substantive visa of the specified type?

28. An applicant may meet cl.573.211(3) in certain circumstances, if they lodge the subclass 573 visa application within 28 days of their last substantive visa ceasing. The last substantive visa held by the applicant was a subclass 485 temporary graduate visa which does not meet the requirements of cl.573.211(3)(b). She did not make the application for the student visa that was refused and is the subject of this review within 28 days of her last substantive visa ceasing.

29. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.573.211(3) and therefore does not meet the requirements of cl.573.211 of Schedule 2 to the Regulations.

30. There is no claim made or evidence before the Tribunal that the applicant’s husband (the dependent applicant) does not remain a member of the family unit of the primary person.  As the primary person does not meet the criteria for the grant of the visa, the Tribunal also affirms the decision to refuse the student visa of the secondary applicant.

31. 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.573.211(3). For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.

    DECISION

32. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Jennifer Cripps Watts
    Member