1511228 (Migration) [2015] AATA 3728 (25 November 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Miss HIU PING CHAN
CASE NUMBER:	1511228
DIBP REFERENCE(S):	CLF2015/40139 
MEMBER:	Mary-Ann Cooper
DATE:	25 November 2015
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 25 November 2015 at 11:47am
1.  	
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 29 July 2015 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 8 July 2015 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 applicant appeared before the Tribunal on 23 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from her sister and brother-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
5.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
consideration of claims and evidence
6.  	The issue 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).
7.  	In this case, the visa application was made in Australia, and the evidence before the Tribunal is that the applicant did not hold a specified substantive visa of a type at the time. As such, the applicant must meet the requirements of subclause (3) set out above.
Was the last substantive visa of the specified type?
8.  	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?
9.  	While the question of when a visa application was made is a question of fact having regard to all of the circumstances, it is ‘made’, for the purposes of the 28 day requirement in cl.572.211(3)(c), when an application is received by the Department in accordance with the statutory requirements. 
10.  	At the hearing the applicant acknowledged that her visa expired on 18 May 2015 and she explained that she had relied on documents provided by her agent and had consequently misunderstood her student visa’s expiry date. She provided a copy of her original application for a student visa which had indicated that her course finished in August 2015 and she said she had relied on this as the date of her visa expiry. She said she had some health issues that had required her to return to Hong Kong for a period of time and that the college had told her not to worry. She confirmed that she had not sought the advice of the Department in this regard. Her sister and brother-in-law told the Tribunal that her failure to apply within the required time had been an innocent mistake.
11.  	As explained by the Tribunal, while it has considerable sympathy for the applicant’s circumstances, it has no discretion in this regard.  
12.  	On the evidence before it, the Tribunal finds that the applicant’s last substantive visa ceased to be in effect on 18 May 2015 and that this visa application was made on 8 July 2015. 
13.  	On the basis of the above, the Tribunal finds that the application was not made within 28 days after the applicant’s last substantive visa ceased to be in effect. 
14.  	Accordingly, the applicant does not meet cl.572.211(3)(c) and therefore does not satisfy cl.572.211(3) as a whole.
CONCLUSION
15.  	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.
16.  	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
17.  	The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Mary-Ann Cooper
Member