NOVARIT (Migration)

[2017] AATA 1112

NOVARIT (Migration) [2017] AATA 1112 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr AMNAJ NOVARIT
Miss SUPHAWADEE JAIHAN

CASE NUMBER:  1607828

DIBP REFERENCE(S):  BCC2016/1530053

MEMBER:Penelope Hunter

DATE:5 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2017 at 10:00am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 - No substantive visa held at time of application – Not currently studying

LEGISLATION
Migration Act 1958, s.65
Migration Regulations 1994, Schedule 2, cl 572.211, r 1.40A

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 18 May 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 20 April 2016. The primary applicant, Mr Amnaj Novarit proposed to undertake study in Australia. Miss Suphawadee Jaihan, the secondary applicant, claimed to be his dependent. 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.

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 primary applicant did not satisfy the requirements of cl.572.211 because the Department received his application more than 28 days after his last substantive visa had ceased

5. The primary applicant appeared before the Tribunal on 31 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicants were represented in relation to the review by a registered migration agent, 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 first named applicant (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:

   ·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 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 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 primary applicant confirmed at the hearing that the last substantive visa he held was a Student visa which meets the requirements of cl.572.211(3)(b).

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

11. The Tribunal asked the primary applicant when he thought that his last substantive visa had expired and he initially claimed that it was 7 July 2016.

12. Pursuant to the provisions of s. 359AA of the Act the Tribunal put to the primary applicant that it had information that the applicant lodged the student visa application on 20 April 2016 and that his last substantive visa ceased to be in effect on 15 March 2016. The primary applicant was advised that this information would be a reason or part of the reason for affirming the decision under review, and that he was entitled to request further time before commenting or responding to it. The Tribunal further explained that relevance of the information if relied upon was that his application for the visa did not meet the requirements cl. 572.221(3)(c).

13. The primary applicant chose to respond immediately and said that he had his agent organise his visa application and that he did not have any money so the application was delayed. The primary applicant further confirmed that he was not studying and said that he had not been studying since February 2016. The primary applicant told the Tribunal he wanted to see whether the visa application was successful before he continued with any study.

14. The primary applicant did not dispute the information put to him in accordance with s. 359AA of the Act regarding the date his last substantive visa ceased. The application for the Student visa contained in the Departmental file is date stamped as having been received on 20 April 2016 and the Tribunal finds on the information before it that the applicants lodged the visa application on 20 April 2016. The last substantive visa for the primary applicant ceased to be in effect on 15 March 2016. Therefore, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect.

15. Accordingly, the primary applicant does not does not meet cl.572.211(3)(c).

16. On the basis of the above, the Tribunal finds that the primary 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.

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.

18. As the primary applicant does not meet the primary criteria and the secondary applicant has applied solely as a dependent of the primary applicant, it follows that she also does not meet the criteria for the visa.

    DECISION

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

    Penelope Hunter
    Member