WANG (Migration)

[2017] AATA 947

WANG (Migration) [2017] AATA 947 (8 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  YAN WANG

CASE NUMBER:  1607384

DIBP REFERENCE(S):  CLF2016/25746

MEMBER:Lilly Mojsin

DATE:8 June 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 08 June 2017 at 1:45pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Holder of a substantive visa at application date – Application made after 28 days of expiry

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 573.211, Schedule 3, Schedule 6, r 35AA, r 42(1A)

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 11 May 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 21 April 2016 to undertake study in Australia.

3. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.573.211.

4. The applicant appealed the decision to this Tribunal on 24 May 2016, attaching a copy of the Department decision to her application.

5. The applicant appeared before the Tribunal on 31 May 2017 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this application is Subclass 573.

7. The delegate refused the visa as the delegate was not satisfied that the applicant has complied with cl.573.211.

8. The applicant explained to the Tribunal that she had initially arrived in Australia as the holder of a 573 Student visa in 2011 and she has been studying and successfully completed a Bachelors Degree. She had contacted her advisor and requested he organise a further visa for her to another course.  She expected that the advisor would lodge the application within time.

9. The applicant confirmed that she has never had a visa cancelled nor has she ever had a visa granted 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;

   REASONS AND FINDINGS

10. The issue in the present case is whether the applicant satisfies cl.573.211.

11. The criteria for Subclass 573 visa are set out in Part 573 of Schedule 2 to the Regulations.

12. If the application for the visa is made in Australia, one of the primary criteria that must be satisfied at the time of application is cl.573.211(1). That criterion requires that the applicant meets the requirements of either subclause (2), (3), (4) or (6). Except in the case of subclause (3), these subclauses require the applicant to be the holder of a substantive visa of a particular type at the time this visa application was made. 

13. As the applicant was not the holder of a substantive visa at the time of application the Tribunal will assess whether the applicant meets subclause (3).

14. Subclause (3) applies to an applicant who is not the holder of a substantive visa (cl.573.211(3)(a)). It requires that:

    the last substantive visa held by the applicant was either a  student visa ; or a special purpose visa; or a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or (in limited circumstances) a Diplomatic (Temporary) (Class TF) visa; or a Subclass 497 (Graduate – Skilled) visa: cl.573.211(3)(b); and

    the visa application be made within 28 days (or within such period specified by Gazette Notice) after the day when that last substantive visa ceased to be in effect; or if that last substantive visa was cancelled, and the Migration Review 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, under ss.368C, 368D and 379C of the Act, 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).

15. Criterion 3005 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 (Additional Criteria Applicable to Unlawful Non-Citizens and Certain Bridging Visa Holders); or Schedule 6 to the Migration (1993) Regulations; or r.35AA or r.42(1A) or (1C) of the Migration (1989) Regulations.

16. 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.

17. The applicant’s last substantive visa ceased on 15/03/2016. She lodged a Student visa application on 22/04/2016, 38 days after her last substantive visa ceased.

18. Since the applicant was not a holder of a substantive visa and her application was lodged more than 28 days after the day her last substantive visa ceased to be in effect, she does not satisfy regulation 573.211(3)(c).

19. As the applicant does not satisfied cl.573.211(3)(c), she therefore does not meet the requirements of cl.573.211 of Schedule 2 to the Regulations.

20. The Tribunal must affirm the decision under review.

    DECISION

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

    Lilly Mojsin
    Member