Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 380
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 380
File number(s): SYG 915 of 2020 Judgment of: JUDGE GIVEN Date of judgment: 4 May 2022 Catchwords: MIGRATION - incorrect form rendered application invalid - Byzantine legislative regime – Google reviews of the Department of Home Affairs’ service Legislation: Migration Act 1958 (Cth), ss 5, 46, 47, 368D, 379C, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Ahmad v Minister For Immigration and Border Protection (No 2) [2018] FCAFC 200
Alade v Minister for Immigration & Anor [2013] FMCA 118
Chen v Minister for Immigration and Citizenship (2013) 218 FCR 561
Godfry v Minister For Immigration & Anor [2017] FCCA 2401
Hasnat v Minister for Immigration and Border Protection [2013] FCCA 1922
Karim v Minister for Home Affairs [2019] FCA 1064
Liu v Minister for Immigration and Anor [2008] FMCA 725
Lolohea v Commonwealth of Australia (2013) 141 ALD 593
Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243
Muradzi v Minister for Immigration and Citizenship [2011] FCA 976
Pathak v Minister For Immigration and Border Protection [2015] FCA 683
Rana v Minister for Immigration and Anor [2009] FMCA 553
Re: Gu and Migration Agents Registration Authority [2022] AATA 749
Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235
Zhao v Minister for Immigration and Border Protection [2018] FCCA 1444
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 4 May 2022 Place: Sydney The Applicant: In person Solicitor for the Respondent: Ms M Kelly of Sparke Helmore ORDERS
SYG 915 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SALIN SHRESTHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
4 MAY 2022
THE COURT ORDERS THAT:
1.The application filed on 7 April 2020 is dismissed.
2.The applicant pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,930.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application filed with this Court on 7 April 2020 the applicant seeks review of a determination of the respondent made on 18 March 2020 that an application that he had made on that date for a Student (Temporary) (Class TU) Student (Subclass 500) visa (visa) was invalid.
Despite seeming to be a primary decision and thus seemingly beyond the jurisdiction of this Court, Division 2 of the Federal Circuit and Family Court of Australia does in fact have jurisdiction to hear an application for review of the aforementioned decision: see ss 474(3)(g) and 476 of the Migration Act 1958 (Cth) (Act).
By reference to those sections, the determination the subject of the present application to the Court is a decision of an administrative character made in the nature of the doing or refusing to do an act or thing. While it is the Minister or his delegate who may form a view about the validity of a visa application for themselves, it is ultimately for the Court to resolve any controversy as to the validity of the visa application: see Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [27] per Yates, Robertson and Wigney JJ.
The factual background to this matter is largely not in dispute and to that extent it is set out in the helpful submissions of the Minister read together with relevant parts of the Affidavits of Tom Hillyard (Hillyard Affidavit) and Annexure “TH-1” thereto, made on 23 October 2020, and Cormac Matthew Burke (Burke Affidavit) affirmed on 27 April 2022, each of which was read at hearing.
Background
The applicant, a citizen of Nepal, was the holder of a Higher Education Sector (Subclass 573) visa (student visa) which was cancelled by a delegate of the Minister on 22 February 2019 (Court Book (CB) 12-13; 23).
The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. On 11 February 2020, the Tribunal made an oral decision to set aside the delegate’s decision and instead substitute a decision not to cancel the applicant’s student visa (CB 48-49).
On 18 March 2020, the applicant lodged an application for the visa using paper Form 157A (CB 1-23). He applied for the visa on the basis of his enrolment in a Bachelor of Business (Accounting) due to finish on 5 March 2023 (CB 4).
On the same day, the respondent’s Department (Department) sent the applicant a letter notifying him that his visa application was invalid (invalidity notification) (CB 53). The invalidity notification informed the applicant that the application for the visa was invalid because it did not meet Item 1222(1) of Schedule 1 to the Migration Regulations 1994 (Cth) (Regulations) as the application was not made in the form as specified by the Minister in a legislative instrument made for item 1222(1) under reg 2.07(5) of the Regulations.
The applicant’s Student visa ceased to be in effect on 15 March 2019: see the Hillyard Affidavit, which annexes a copy of the delegate’s decision dated 22 February 2019 cancelling the applicant’s student visa. The application for the visa was required to be made within 28 days of the date the applicant was notified of the Tribunal’s decision: item 1222(4)(c)(ii).
For the purposes of ss 368D and 379C of the Act, the applicant was taken to have been notified of the Tribunal’s decision on the date it was made, being 11 February 2020 (CB 48-49). Therefore, the applicant was required to lodge the visa application by 10 March 2020 (i.e. 28 days after the notification). He did not do so, nor is there any evidence to suggest that he attempted to make the application on or before that date. Rather, on the applicant’s account, he attempted to apply for the visa online six days after the cut-off date, on 16 March 2020 (see particular (iv) of ground one of the application for judicial review).
The applicant then lodged the application, using the paper Form 157A, on 18 March 2020 (CB 1-23). The application was invalid because it was not made within 28 days after the applicant was notified of the Tribunal’s decision as required by item 1222(4)(c)(ii) of Schedule 1 to the Regulations.
The applicant did not hold a substantive visa when he lodged the application for the visa, nor did he hold a substantive visa when he applied for the student visa he previously held: item 1222(4)(d). Relevantly, the applicant’s Integrated Client Services Environment (ICSE) records reveal that the only substantive visa held by the applicant was the student visa, which was granted on 28 January 2015 and ceased to be in effect on 15 March 2019: see Annexure “CMB-2” to the Burke Affidavit. The application was therefore invalid because it failed to comply with item 1222(4)(d).
Relevant legislation
Section 46(1)(b) of the Act states:
Valid visa application
Validity—general
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
…
(b) it satisfies the criteria and requirements prescribed under this section;
Section 46(3) of the Act states:
Prescribed criteria for validity
The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
Section 47 of the Act states:
Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
Section 368D(1) of the Act states:
Tribunal’s decisions given orally
How and when oral decisions are taken to have been made
A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.
Section 379C(5) of the Act states:
When a person other than the Secretary is taken to have received a document from the Tribunal
Transmission by fax, email or other electronic means
If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
The legislative instrument, Migration (LIN 20/102: Arrangements for Student (Temporary) (Class TU) visa applications) Instrument 2020 (LIN 20/102), is an Appendix to this judgment.
From the aforementioned legislation the following can be discerned. Sections 46 and 47 of the Act have the effect that an application for a visa of a specified class is valid if it satisfies relevant criteria for its validity as prescribed by the Regulations: see ss 46(1)(b) and (3) and 47(3) of the Act. This extends to the manner of lodgement, if so prescribed by the Regulations, which is essential to its validity: see Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 per Tracey J at [34].
At the time that the applicant made the visa application in question the following needed to be met in order for that application to be valid:
(a)it must be made at the place and in any specified manner specified in a legislative instrument made for item 1222 under reg 2.05 of the Regulations;
(b)LIN 20/102 required that by reference to subsections 6(1), (2), (3), and item 2 of Schedule 1 thereto, that the approved form for the application was Form 157A (internet) unless the applicant was sent an email by an authorised officer of the respondent’s Department, which would authorise his use of the non-internet version of Form 157A (authorising email);
(c)if the applicant was a recipient of an authorising email and then proceeded to use the Form 157A non-internet version, then the authorising email needed to be attached to the application : see section 6(4)(b) of LIN 20/102;
(d)if the applicant was in Australia at the time of the making of the application (which I understand he was) then, pursuant to item 1222(4), he must hold a substantive visa, other than a substantive temporary visa, specified in an instrument under item 1222(5) or satisfy the following:
(a) the applicant is not the holder of a substantive visa;
(b) the last substantive visa held by the applicant was a student visa; or a special purpose visa; or a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse or de factor partner, or a dependent relative, of a diplomatic or consular representative of a foreign country;
(c) the application is made within 28 days after:
(1) the day when that last substantive visa ceased to be in effect; or
(2) 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 the last substantive visa ceased to be in effect; and (b) the day when the applicant is taken, under ss 368D and 379C of the Act, to have been notified of the Tribunal’s decision;
(d) the applicant has not previously been granted a visa based on an application made when the applicant did not hold a substantive visa.
Current proceedings
By an application made on 7 April 2020 the applicant now seeks review of the determination about the validity of his visa, and he raises two grounds of review as follows (omitting particulars):
1.The Delegate erred in law by stating that item 1222(1) of schedule 1 of the Migration regulations was not complied with, as the application was not lodged in a manner required by the legislative instrument pronounced pursuant to sub regulation 2.07(5) of the Migration Act.
2.The Delegate erred in law as it was unreasonable and irrational in rejecting the application made by the applicant as invalid.
On 18 June 2020 a Registrar made orders for the preparation of the matter, which included leave for the applicant to file an Amended Application, an opportunity in relation to which the applicant did not subsequently avail himself. In January of this year the applicant wrote to the Court ex parte seeking that his matter be heard on an expedited basis. That email was forwarded by the Court to the Minister’s solicitors. On 28 February 2022 the matter was brought into my docket and was listed for hearing today, together with consequential orders by a Registrar for its preparation.
Despite orders that the applicant file written submissions, he did not do so. Written submissions were filed for the respondent on 27 April 2022, which are said to supersede a similar document filed earlier in time and pursuant to the 2020 orders made by the Registrar. Accordingly, I have had regard only to the submissions filed for the respondent later in time.
The applicant appeared before me today using the Microsoft Teams platform. An interpreter in the Nepali language has been available throughout the hearing, but the applicant speaks good English and has not needed to use the interpreter at all. Throughout the hearing the connection to the parties has been clear and without any technical issues, and the parties and the Court have not had any difficulty in hearing or interacting with one another.
While in the process of identifying the evidence that was before the Court today, the applicant sought to tender additional documents which he had previously sent to the solicitors for the Minister on 2 May 2022 but which had not been placed before the Court. The Minister objected to the Court receiving the documents on the basis of relevance. I adjourned briefly so those documents could be sent by email to my Associate and, upon re-ascending the Bench, I reviewed the documents. The documents are screenshots of what appear to be online Google reviews of the service of the Department of Home Affairs at its Lee Street offices in Sydney.
In relation to why these documents were relevant, the applicant said that it proves that the people who go to the Department are not satisfied with the service that they receive and noted that the Department has an overall average of 1.8 out of 5 stars.
I rejected the tender of the documents, agreeing with the Minister that these are not relevant to the application that I have before me and explained to the applicant that, while I could readily understand his unhappiness in relation to the outcome of these proceedings, any poor service experienced by third parties who are unrelated to these proceedings could not inform any part of whether or not the determination made by a delegate of the Minister in relation to the validity of the applicant’s own visa application could be informed by these reviews.
Before embarking upon a consideration of the applicant’s grounds of review, and having regard to the submission that he made about his unhappiness and the service that he received, I not only have sympathy, but a great empathy, for his predicament.
It is neither a coincidence, nor glib, that an expression that is often used by the Courts to describe the legislative framework that attends the area of migration is “Byzantine”: see Lolohea v Commonwealth of Australia (2013) 141 ALD 593 at [8] per Rares J; Sayadi v Minister for Immigration and Border Protection [2015] FCA 1235 per Perram J at [17]; Karim v Minister for Home Affairs [2019] FCA 1064 per Perram J at [4]; Pathak v Minister For Immigration and Border Protection [2015] FCA 683 per Rares J at [41]; Chen v Minister for Immigration and Citizenship (2013) 218 FCR 561 per Logan J at [4]; Zhao v Minister for Immigration and Border Protection [2018] FCCA 1444 per Judge Baird at [6] which was cited by the Full Federal Court in Ahmad v Minister For Immigration and Border Protection (No 2) [2018] FCAFC 200 per Rares, Davies and Bromwich JJ at [25]; Godfry v Minister For Immigration & Anor [2017] FCCA 2401 per Judge Driver at [10]; Hasnat v Minister for Immigration and Border Protection [2013] FCCA 1922 per Judge Raphael at [1]; Alade v Minister for Immigration & Anor [2013] FMCA 118 per Neville FM (as her Honour then was) at footnote 4 to [41]; Rana v Minister for Immigration and Anor [2009] FMCA 553 per Cameron FM (as his Honour then was) at [26]; Liu v Minister for Immigration and Anor [2008] FMCA 725 per Wilson FM (as his Honour then was) at [3]; see also Re: Gu and Migration Agents Registration Authority [2022] AATA 749 per Deputy President De Sosso.
Whether by design or simply by shambolic evolution, the regime is often confusing even to lawyers and courts, so one can only marvel that applicants, some of whom have limited or no English, can even begin to grapple with the morass of the Act or the Regulations. It is clear that the applicant in this case did try, admirably, to navigate the relevant path, but unfortunately he was not successful.
Ground 1
By ground 1, the applicant alleges, in essence, that his application was lodged in the manner required by the legislative instrument pronounced pursuant to reg 2.07(5). The particulars to the ground rely upon the Affidavit that he made on 7 April 2020 and which was filed in support of the originating application.
In short, the applicant deposes to:
(a)seeking to obtain an authorising email to enable him to lodge a paper form; and
(b)a Departmental officer having told him that he could apply for the visa before the expiration of his bridging visa. The applicant also gave a position number for that person.
Notwithstanding this, in relation to the validity of the application, by reference to the legislation which I have outlined previously, I find as follows:
(a)as noted earlier, and by reference to item 1222(4)(c)(ii) of Schedule 1 to the Regulations, the timeframe in which the visa application was required to be made was 28 days after the later of the day when the last substantive visa ceased to be in effect and the day on which the applicant was taken by reference to accommodation of ss 368D and 379C of the Act to have been notified of the decision;
(b)by reference to Annexure “TH-1” to the Hillyard Affidavit, the applicant’s previous visa, which had been cancelled on 22 February 2019, ceased to be in effect on 15 March 2019;
(c)by reference to ss 368D and 379C of the Act, the applicant was taken to have been notified of the Tribunal’s substitution decision on 11 February 2020 because it is taken to have been made and notified to the applicant for review on the date and at the time the decision was given orally. In any event, the written statement was also provided to him by email on the same date which is, therefore, taken to have been received by him at the end of that day;
(d)accordingly for the purpose of counting 28 days hence, the later of the two dates is therefore 11 February 2020 which means that the date by which the applicant was required to lodge the visa application was 11 March 2020;
(e)the particulars to ground 1 state that the applicant first attempted to lodge the online visa application on 16 March 2020. By his own concession at hearing before me today, that was already five days out of time for doing so;
(f)the applicant was not the holder of a substantive visa at the time that he sought to lodge the application, his previous visa having ceased to be in effect almost a year earlier. By reference to the Burke Affidavit, it appears that at the time the applicant sought to lodge the visa, he held a bridging visa, which by reference to s 5 of the Act is not a substantive visa. In the absence of holding a substantive visa, the applicant did not meet item 1222(4)(d); and
(g)being the only actual basis upon which the applicant was notified as to the invalidity, the application was not made using the correct form because the applicant sought to make a paper application, and the specified form for a Subclass 500 visa was the Form 157A (internet).
While seemingly the most pedantic available basis of invalidity, there is no dispute that the applicant did not lodge the application using the internet form. As noted earlier, pursuant to LIN 20/102, in the absence of an authorising email, the applicant was required to use the internet form. The applicant says in the particulars to ground 1 that when the online system would not permit him to do so. For reasons unknown to the Court but possibly because the application was out of time, the applicant then had another person whom he describes as his educational consultant, seek to obtain an authorising email to enable him to lodge a paper version. It is not in dispute that the application was not accompanied by an authorising email, as it was required to be pursuant to section 6(4)(b) of LIN 20/102.
The applicant’s Affidavit seeks to rely on certain matters to counter the bases of invalidity, namely, that he was informed, or more accurately misinformed, by an officer of the Department that he could apply for the visa before the expiry of his bridging visa. There is nothing before me other than a bare claim by the applicant that such a statement was made to him. However, even if it was, it was incorrect, and there is nothing before me to suggest that there is any discretion on the part of the Department, its officers, or even the Minister, to waive the requirements of the Regulations and the legislative instrument. The applicant did not apply within the requisite timeframe or while holding the prescribed type of visa.
On the applicant’s own version of events, he did not seek to apply for the visa online until 16 March 2020, by which time he was already out of time to do so. I have no evidence before me to indicate that the Department’s system was not in fact operating properly but in any event that would not make an invalid application valid which, as a matter of logic, if not law, must be so: see Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243 per Perry J at [28] where her Honour stated:
It follows the applicant was liable to pay the first instalment of the charge at the time he made his application and, by virtue of s 46(1)(b), reg 2.07 and 2.12C(1)(a), no valid application was made until that instalment of the charge was paid. If for no other reason, therefore, it cannot be said that any valid application was made until the fee was paid by the applicant on 24 May 2012, as the Tribunal found: Hayman at 124 [21]–[22] (Finkelstein J); Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513 at 527 [70] (Weinberg J). Further and in any event I agree with the primary judge (at [29]) that the same result follows from the fact that no completed online form was lodged. This is not a case where an application was lodged but subsequently lost or not acted upon.
The instant case is similarly not one where an application was lodged, but subsequently lost or not acted upon.
In my view there is no error as alleged by ground 1 and it must fail.
Ground 2
The second ground of the originating application alleges legal unreasonableness, referencing the failure of the Department’s system to enable the applicant to lodge the internet form, and the subsequent finding of invalidity of the paper application then lodged. In this regard, the Minister says that the matter is indistinguishable from the relevant authorities in relation to legal unreasonableness and irrationality: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, because it does not involve a question of jurisdictional fact upon which different minds might reach different conclusions. While no doubt baffling and trivial to the applicant, the requirements were strict and he did not meet them.
In oral submissions to me today, the solicitor for the Minister has acknowledged that this outcome is harsh for the applicant but says that the fact is that the applicant did not, and cannot, meet the statutory requirements for validity on a number of bases, including but not limited to the issue of the correct form. The Minister submits that there was no probative evidence capable of giving rise to a differing conclusion on the relevant bases, and that reasonable minds could not differ such as to even enliven the test for illogicality or irrationality contemplated by SZMDS. Further, and as I noted earlier, there was no available exercise of discretion conferred by the statutory regime as was the case in Li. Rather, the application either met the requirements for validity or it did not. Harsh as that outcome may be for the applicant, as acknowledged by the Minister, it is unfortunately irresistible.
The applicant made submissions to me today to the effect that he just needed one more chance to apply for his visa and that he wants a chance to “chase [his] dream” again, and he just wants to graduate. While having the utmost sympathy, as earlier expressed, for the applicant’s position, for reasons given above, I find that there is no error in the determination of invalidity of the applicant’s visa application. For that reason, the application made to this Court must be dismissed, and I will so order.
Costs
Consequent upon the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $7,467, which I am told is the scale amount as of the time the applicant commenced the proceedings. I am of the view that costs should follow the event, however, having regard to my comments made earlier, and the fact that there was an almost irresistible proposition that this matter could not succeed, I note several other factors.
The matter was initially listed for a show cause hearing, which was subsequently vacated. Further, and notwithstanding the fact that the Minister was ordered to file further submissions, the submissions engrossed, but did not entirely replace, the earlier submissions. In any event, the facts (in contrast to the legislation) were reasonably simple and, as the Minister has said in written and oral submissions, all pointed in one direction.
In my view, and in all of the circumstances of this case, the more appropriate amount is the scale amount for what would have been the show cause hearing under the former Federal Circuit Court Rules 2001 (Cth) for which this matter was initially listed. The amount for an interlocutory hearing in migration proceedings is presently $3,930. In all of the circumstances, I am prepared to make an order for costs, but I will make it in the lesser amount.
I will also make an order which prevents time from running for any appeal, until written reasons, revised from the transcript of this ex tempore judgment, are published to the parties.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 19 May 2022
APPENDIX
Part 1—Preliminary
1 Name
(1) This instrument is the Migration (LIN 20/102: Arrangements for Student (Temporary) (Class TU) visa applications) Instrument 2020.
(2) This instrument may be cited as LIN 20/102.
2 Commencement
This instrument commences on the day after it is registered on the Federal Register of Legislation.
3 Authority
This instrument is made under subregulation 2.07(5) of the Migration Regulations 1994.
4 Definitions
Note: A number of expressions used in this instrument are defined in subsection 5(1) of the Act, including the following:
(a)outside Australia;
(b)in Australia.
In this instrument:
Act means Migration Act 1958
authorising email means an email sent by an officer of the department, authorising an applicant to make an application in a different place or a different manner.
Class TU visa means Student (Temporary) (Class TU) visa.
Department means Department of Home Affairs.
PHEIC means Public Health Emergency of International Concern designated by the World Health Organisation.
reapplying applicant means an applicant:
(a)whose Subclass 500 visa or Subclass 590 visa was cancelled under paragraph 116(1)(e) of the Act as a result of the risk, in relation to a relevant PHEIC, to the health, safety or good order the Australian community, or a segment of the Australian community; and
(b)who is seeking to apply for a Subclass 500 visa or Subclass 590 visa .
Regulations means the Migration Regulations 1994.
relevant PHEIC means the PHEIC on the basis of which a subsequent applicant’s Subclass 500 visa or Subclass 590 visa was cancelled.
5 Schedules
The instrument specified in Schedule 2 to this instrument is repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Part 2—Arrangements for the Class TU visa
6 Form and manner of making visa applications
(1) This section:
(a)is made for the purposes of item 1222 of Schedule 1 to the Regulations; and
(b)applies to an application for a Class TU visa.:
(2) The approved internet form is specified in Column 3 of the table in Schedule 1 for the applicants mentioned in Column 2 of the table for that item, who are making an application for the visas mentioned in Column 1 of the table for that item.
Different way of making visa applications
(3) Subject to subsection (4) or subsection (5), a visa application may be made other than as an internet application if a departmental email is sent by an authorised officer of the department and that email (the authorising email):
(a)authorises the use of non-internet forms specified in Column 4 of the table in Schedule 1 for an applicant mentioned in Column 2 of the table for that item, who are making an application for the visa mentioned in Column 1 of the table for that item ; and
(b)includes the approved non-internet forms mentioned in paragraph (a).
(4) Subject to subsection (5), if the visa application is made other than as an internet application:
(a)the applicant must submit the approved form according to the directions specified in the authorising email; and
(b)a copy of the authorising email must be attached to the application; and
(c)the application must be submitted before midnight (AEST or AESDT when applicable) on the day following the date on which the authorising email was sent by an officer of the Department; and
(d)if the applicant is outside Australia, the authorised application may also be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.
(5) If the visa application is made by an applicant mentioned in item 4 of the table in Schedule 1:
(a)the applicant must submit the approved form according to the directions specified in the authorising email; and
(b)a copy of the authorising email must be attached to the application.
Schedule 1—Forms required for applications to be made for Class TU visas.
Approved Forms
Item
Column 1
Subclass of visa
Column 2
Applicant
Column 3
Approved Internet Forms
Column 4
Approved Non - Internet Forms
1 Subclass 500 (Student) An Applicant who:
(a) at the time of application is under 18 years of Age; and
(b) intends to reside with a parent, a person who has custody of the applicant, or a suitable relative
157A (internet) with 157N 157A with 157N 2 Subclass 500 (Student) For applicants who do not meet the criteria in item 1 157A (internet) 157A 3 Subclass 590 (Student Guardian) Any applicant 157G (internet) with 157N 157G with 157N 4 Subclass 500 (Student) and Subclass 590 (Student Guardian) The applicant who:
(a) is in Australia; and
(b) is a reapplying applicant; and
(c) makes an application for the Subclass 500 visa or the Subclass 590 visa no later than 3 months after the cancellation of the applicant’s Subclass 500 visa or the Subclass 590 visa.
Not applicable 1543 Schedule 2—Repeal
Arrangements for Student Visa Applicants 2017/011
1 The whole of the instrument
According to section 33(3) of the Acts Interpretation Act 1901, the instrument is repealed.
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