Thapa (Migration)

[2017] AATA 1303

Thapa (Migration) [2017] AATA 1303 (12 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Subha Thapa

CASE NUMBER:  1612113

DIBP REFERENCE(S):  CLF2016/39139

MEMBER:Penelope Hunter

DATE:12 July 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 12 July 2017 at 5:17pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Application 28 days after last substantive visa – Last substantive visa 457 – Not specified in criteria

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, r 1.40A, cl 572.211

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 18 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 30 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 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 visa on the basis that the applicant did not satisfy the requirements of cl.572.211 because the applicant applied for the visa more than 28 days after his last substantive visa had ceased.

5. The applicant appeared before the Tribunal on 12 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Ms Tiffany Tsz-Wing Ng

6. The applicant was represented in relation to the review by his 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 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.

9. As set out in the decision of the delegate filed by the applicant with the Tribunal application, the last visa held by the applicant expired 7 June 2016. The visa application filed by the applicant, which is contained in the Department file, was filed with the Department on 30 June 2016. The applicant did not dispute these dates. The Tribunal therefore finds that the applicant did not hold a substantive visa at the time the application was made.

10. Alternatively cl.572.211(3), requires that the last visa held by the applicant be a specified type as follows;

    572.211 (3)      An applicant meets the requirements of this subclause if:

    (a)      the applicant is not the holder of a substantive visa; and

    (b)      the last substantive visa held by the applicant was:

    (i)      a student visa; or

    (ii)      a special purpose visa; or

    (iii)      a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

    (iv)      a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

    (v)      a Subclass 497 (Graduate — Skilled) visa;

11. The delegate records that the last substantive visa held by the applicant was a subclass 457 visa. The applicant confirmed this in his evidence to the Tribunal. This is not the type of substantive visa specified in the criteria contained in cl.572.211(3).

12. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.572.211(3), and therefore, he does not meet the requirements of cl.572.211 of Schedule 2 to the Regulations.

13. 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.

    DECISION

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

    Penelope Hunter
    Member