MOK (Migration)

[2017] AATA 2045

MOK (Migration) [2017] AATA 2045 (18 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss WAI TUNG MOK

CASE NUMBER:  1611899

DIBP REFERENCE(S):  CLF2016/36929

MEMBER:Penelope Hunter

DATE:18 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2017 at 3:24pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – Application not made within 28 days of last substantive visa

LEGISLATION
Migration Act 1958, ss 46, 65
Migration Regulations 1994, r 1.40A, Schedule 1 Item 1222, Schedule 2 cl 573.211

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 13 July 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 15 June 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.

4.    The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.573.211 because the applicant did not hold a substantive visa when she lodged her application.

5.    The applicant lodged an application for review of the decision of the delegate with the Tribunal on 2 August 2016, and provided the Tribunal with a copy of the delegate’s decision record. On 16 June 2016, the agent for the applicant provided additional documents and submissions in support of her application. In the submission it was claimed that the applicant was a genuine student. The submission argued that because the student visa application was invalid when lodged by the applicant it should be returned rather than refused. A claim was made that the visa application should be revoked by the Tribunal. 

6.    The applicant appeared before the Tribunal on 6 July 2017 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

7.    The applicant was represented in relation to the review by her registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal has considered the applicant’s submission regarding the invalidity of the application due to non-compliance with section 46 of the Act and Item 1222 of Schedule 1 of the Regulations. The Tribunal is not satisfied that the application was invalid in this respect. These provisions of the Act and the Regulations do not prescribe the time for making a valid application nor do they prescribed classes of visa that can make certain applications. As discussed with the applicant and her representative at the hearing, these provisions address items such as the specification of the visa class to be applied for, the appropriate forms and fees and the location of the applicant at the time of application. In regard to these items the application filed by the applicant has met the requirements of being a valid application. The submission that the visa application should be taken as not having been made, or is not a valid application, is rejected.

10.    The issue therefore in the present case is whether 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).

11.    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?

12.    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?

13.    On the evidence before the Tribunal, the current visa application was made on 15 June 2016.

14.    The applicant’s last substantive visa ceased to be in effect on 15 March 2016.

15.    The applicant had not held a visa for approximately 3 months at the time she applied for the visa, the subject of the decision under review.

16.    On the basis of the above, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect. Accordingly, the applicant does not meet cl.573.211(3)(c).

17. 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.

18.     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

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

Penelope Hunter
Member