Lin (Migration)

[2016] AATA 4900

Lin (Migration) [2016] AATA 4900 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chi Cuong Lin
Miss Thu Ha Tran Thi

CASE NUMBER:  1513864

DIBP REFERENCE(S):  BCC2015/2552104

MEMBER:Don Lucas

DATE:8 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 February 2016 at 5:01pm

CATCHWORDS
Migration ­ – Student (Temporary) (Class TU) visa ­ ­– Subclass 573 – Schedule 3 criterion not satisfied – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 362B
Migration Regulations 1994, Schedule 2, cl 573.211, Schedule 3 criterion 3005

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 22 September 2015 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 2 October 2015 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.

4. The delegate refused the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.573.211 The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.573.211 because he did not satisfy criterion 3005.

5. On 11 January 2016 the Tribunal wrote to the review applicants, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 8 February 2016. They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice. No response was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear.

6. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

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 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).

9. 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.

   Was the last substantive visa of the specified type?

10. The last substantive visa held by the applicant was a student visa which meets the requirements of cl.573.211(3)(b).

    Was the visa application made within 28 days of the last substantive visa ceasing?

11. On the evidence before the Tribunal, the current visa application was made on 2 September 2015. The applicant’s last substantive visa ceased to be in effect on 30 August 2015.

12. On the basis of the above, the Tribunal finds that the application was made within 28 days after the last substantive visa ceased to be in effect.

13. Accordingly, the applicant meets cl.573.211(3)(c).

    Is criterion 3005 met?

14. To meet cl.573.211(3)(d), the applicant must satisfy Schedule 3 criterion 3005 which requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations or Schedule 6 to the Migration (1993) Regulations; or r.35AA or r.42(1A) or (1C) of the Migration (1989) Regulations.

15. According to the delegate’s decision, a copy of which was provided by the applicant to the Tribunal, a visa was previous granted to the applicant on 8 April 2015 on the basis of the satisfaction of the criteria set out in Schedule 3.

16. Accordingly, the applicant does not satisfy criterion 3005 and the requirements of cl.572.211(3)(d).

17. 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.

    CONCLUSIONS

18. 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. As the first named applicant is unable to meet primary criteria, it follows that the second named applicant is unable to meet relevant secondary criteria.

    DECISION

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

    Don Lucas
    Member