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0908546 [2011] MRTA  1137  (26 May 2011)

Last Updated: 3 June 2011

0908546  [2011] MRTA 1137  (26 May 2011)

DECISION RECORD

APPLICANT: Mr Dev Dutt

MRT CASE NUMBER: 0908546

DIAC REFERENCE(S): CLF2010/4519

TRIBUNAL MEMBER: Alison Murphy

DATE: 26 May 2011

PLACE OF DECISION: Melbourne

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

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 and Citizenship 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 to the Department of Immigration and Citizenship for a Student (Temporary) (Class TU) visa on 22 September 2009. The delegate decided to refuse to grant the visa on 5 October 2009 and notified the applicant of the decision and his review rights by letter dated 5 October 2009.
3. The delegate refused the visa application on the basis that the applicant did not satisfy the requirements of cl.572.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Specifically, the delegate found that the applicant did not satisfy cl.572.211(3) because at the time of his the lodgement of his visa application, he was not the holder of a substantive visa and his last substantive visa had ceased more than 28 days before.
4. The applicant applied to the Tribunal on 26 October 2009 for review of the delegate’s decision.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Regulations. For applicants who apply as a student, the subclass that can be granted in any particular case depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course as explained in r.1.40(2) and (3) of the Regulations, and its specification by the Minister by Gazette Notice made under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2) or, for Subclass 576, its approval by the AusAID Minister or the Defence Minister (see Part 576 of Schedule 2). The relevant subclass in this case is Subclass 572 Vocational Education and Training Sector. There is no suggestion that the applicant meets the criteria for any of the other subclasses.
7. The criteria for a Subclass 572 are set out in Part 572 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.
8. 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.572.211(1). That criterion requires that 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. Subclause (3) applies to an applicant who is not the holder of a substantive visa (cl.572.211(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 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 a Subclass 497 (Graduate – Skilled) visa: cl.572.211(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.572.211(3)(c); and
   • the applicant satisfies Schedule 3 criterion 3005: cl.572.211(3)(d).
9. 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.
10. The issue in the present case is whether the applicant meets cl.572.211.

CLAIMS AND EVIDENCE

11. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
12. The applicant is a national of India born 5 March 1977. He was granted a Class TU sub-class 573 (Higher Education Sector) visa on 21 November 2006 valid until 15 March 2009 and travelled to Australia as a holder of that visa on 26 November 2006. He was granted a further Class TU sub-class 573 (Higher Education Sector) visa on 12 December 2006 also valid until 15 March 2009. He departed Australia on 20 October 2008 and re-entered on 2 December 2008, again on a Class TU sub-class 573 (Higher Education Sector) visa valid until 15 March 2009. On 31 March 2009 the applicant was granted a bridging visa valid until 22 September 2009.
13. On 22 September 2009 the applicant applied for a further student visa. On 5 October 2009 the delegate decided to refuse to grant the visa to the applicant because the application was made more than 28 days after the applicant’s last substantive visa had ceased. The applicant sought review of the delegate’s decision on 26 October 2009.
14. The applicant appeared before the Tribunal on 9 May 2011 to give evidence and present arguments. At the hearing he told the Tribunal that he did not dispute that his earlier student visa had expired on 15 March 2009 or that he lodged the current application for a further student visa on 22 September 2009.
15. The applicant told the Tribunal that he arrived in Australia in November 2006 and finished his studies in June 2008. He stated that he lodged an application for a Class VC sub-class 485 (skilled – graduate) visa in September 2008 and that he went overseas in October 2008 after lodging that application. When he returned to Australia he sat an IELTS test but didn’t get the score he needed. He sat for another test and they refused to give him the results.
16. The applicant provided the Tribunal with correspondence from IELTS dated 7 June 2009 and 5 June 2009 and a statement that he had provided to IELTS Australia dated 10 June 2009. The IELTS Australia letter dated 7 June 2009 states in part that a decision had been made not to release his IELTS test to him, apparently because quantitative and qualitative analyses of those results revealed highly unusual patterns in his test responses which resulted in his test coming under further scrutiny. The letter states that the results were provided to an independent, expert committee for further analysis and the findings of that committee were in agreement with the findings of the statistical analyses.
17. The applicant stated that after receiving this correspondence from IELTS Australia, he asked his case officer at the Department for time to do a further test but was refused. He was advised by his agent to withdraw his skilled visa application and lodge a further application for a student visa. On her advice he withdrew his skilled visa application in May 2009, not realising that it was necessary for him lodge a student visa application within 28 days of last holding a substantive visa.
18. The applicant told the Tribunal that there were two main reasons that he is in this situation:
    • Firstly, that he had bad advice from his migration agent who advised him to withdraw his skilled visa application. He has since been told that had that visa application proceeded and been refused, he could have come to this Tribunal who may have granted him a 485 visa if he had a successful IELTS test result in his hand;
    • Secondly, that his case officer at the Department would not give him more time to take a further IELTS test when many of his friends were given further time if they failed their tests.
19. The applicant told the Tribunal that his wife had been held up overseas as she was having problems at home but that she had applied for a 485 visa and that he wished to be joined to her visa. The Tribunal advised the applicant that had no jurisdiction to consider any matter other than the matter under review, being the decision to refuse him a student visa on 5 October 2009.

FINDINGS AND REASONS

20. On the evidence before it, the Tribunal finds that the visa application was made in Australia, and accordingly the applicant is required to satisfy cl.572.211. Movement records before the Tribunal indicate that the applicant was granted a bridging visa on 31 March 2009 which was valid until 22 September 2009, at which time he was granted a bridging visa C. On the basis of those movement records, the Tribunal finds that at the time of application on 22 September 2009, the applicant was not the holder of a substantive visa of the type described in cl.572.211(2), (4) or (6), and accordingly meets the requirements of cl.572211(3)(a). As such, the issue is whether the applicant meets the remaining requirements of cl. 572211(3).
21. The last held substantive visa held by the applicant was a student visa which meets the requirements of cl.572211(3)(b).
22. To meet cl.572211(3)(c), the applicant was required to have lodged the current visa application within 28 days after the day when the last visa ceased to be in effect; or if the visa was cancelled and the Migration review Tribunal set aside the decision to cancel or not revoke the cancellation, the day when the applicant was taken to be notified of that decision under ss.368C, 368D and 379C of the Act.
23. The visa application contained on the departmental file indicates that the applicant signed that application on 21 September 2009. The Form 651 (Tax Invoice/ Receipt) and electronic records contained in the Departmental file before the Tribunal indicate that the applicant lodged that application for a student visa on 22 September 2009 and the applicant agreed that was the case. On the evidence before it, the Tribunal finds that the current visa application was made on 22 September 2009.
24. Movement records before the Tribunal indicate that the applicant’s last substantive visa ceased to be in effect on 15 March 2009 and the applicant agreed that was the case. The Tribunal finds accordingly. On the basis of the above, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect. Accordingly, the Tribunal finds the applicant does not meet cl.572.211(3)(c).
25. The Tribunal acknowledges the applicant’s evidence as to the circumstances that led to the refusal of the visa, but the legislation does not permit the Tribunal to take into account these reasons when considering whether he meets the requirements of cl.572.211(3)(c).

CONCLUSIONS

26. On the basis of the above, the Tribunal finds that the 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.
27. With the exception of Subclass 580, the other subclasses within the Class TU visa class have a requirement for applicants in Australia who do not hold a substantive visa at the time of visa application 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. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass.

DECISION

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

Alison Murphy
Member