N05/03154 [2006] MRTA 95 (8 February 2006)

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Mr Xin Yu Zhou (the visa applicant), a national of The People's Republic of China, born on 2 April 1985, applied for a Student (Temporary) (Class TU) visa on 3 May 2005. The delegate's decision to refuse to grant the visa was made on 4 May 2005.

The visa applicant lodged an application for review with the Tribunal on 2 June 2005. The decision is reviewable by the Tribunal and the application for review is valid.

At the time the visa application was lodged, Class TU contained a number of subclasses. The visa applicant has made claims with respect to Subclass 571. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses.

The central issue is whether the visa applicant made his visa application within 28 days after their last substantive visa ceased to be in effect as required by paragraph 571211(3)(c) of Schedule 2 to the Regulations.

The Tribunal has before it Tribunal file N05/03154 and Departmental case file CLF2005/035599. The relevant material contained in these files may be summarised as follows.

The visa applicant first arrived in Australia on 8 June 2003 on a subclass 571 visa, which was granted offshore. This visa expired ion 15 March 2005.

On 3 May 2005 the visa applicant applied to study in the schools sector. He provided to the Department evidence of his enrolment at Taylors College as a full time student studying in the Year 12 programme.

The visa application was refused because the visa applicant did not lodge his application for a further visa to stay in Australia within 28 days of the expiry of his previous visa.

On 2 June 2005 the visa applicant lodged an application for review with the Tribunal (T1, f.10). No submissions were made at time of the application for review; however, a copy of the delegate's decision was included with the application form (T1, ff. 2-6).

On 2 November 2005 the Tribunal extended an invitation to the visa applicant to attend a hearing to give evidence and present arguments in regard to his review (T1, f.38).

On 7 December 2005 the Tribunal received a submission from the visa applicant's representative (T1, ff.44-45) in which it is claimed that 'this is a simple case of the student allowing his visa...to expire as he failed to renew it on time.' The submission goes on to claim that the visa applicant had misread the date his visa expired in his passport and believed the month it expired was May and not March. It is also claimed that there are mitigating circumstances in this case, as the visa applicant is very immature, was living away from home for the first time in his life and was under a lot of pressure to excel in his studies for the HSC.

On 7 December 2005 the Tribunal conducted a hearing At the hearing the representative tabled a letter stating that the visa applicant did not wish to appear before the Tribunal and requested the Tribunal to take evidence from the representative on his behalf. This letter was initialled by the visa applicant (T1, f.47).

The Tribunal put it to the representative that the visa applicant had not applied within 28 days of the expiry of his last held substantive visa, and so he could not succeed in his current visa application. The Tribunal further noted that it had no discretion to take compelling circumstances into account.

The visa applicant's representative stated that he understood there was no discretion given to the Tribunal in regard to the requirements of the regulations in this subclass of visa. It was stated that it was understood that the visa applicant had not lodged his visa application within 28 days of the expiry of his previous substantive visa and so the visa could not be granted. The representative stated that the visa applicant has completed his HSC and was intending to return to his family in China.

The representative stated that the visa applicant consented to the Tribunal making a decision without him giving evidence and this is noted in the letter tabled at the hearing.

In light of a High Court decision made in SAAP, the Tribunal decided to send a letter to the visa applicant under s359A of the Act on 8 December 2005 (T1, ff.58-59) seeking comment on the fact that he did not make visa application within 28 days of his previous substantive visa expiring and setting out why this is relevant to the Tribunal's decision. The Tribunal did not receive a response by the due date and accordingly, has proceeded to make a decision without taking additional action.

As set out above, at the time the visa application was lodged, Class TU contained a number of subclasses. The visa applicant has made claims with respect to Subclass 571. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses and the Tribunal finds so.

The criteria for the grant of a subclass 571 visa are set out in clause 571.211 of the regulations below.

571.211 (1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4), (5) or (6).

(2) An applicant meets the requirements of this subclause if the applicant is:

(a) the holder of a visa of one of the following classes:

(b) the holder, as the spouse or a dependent relative of a diplomatic or consular representative of a foreign country, of a Diplomatic (Temporary) (Class TF) visa; or

(c) the holder of a special purpose visa; or

(d) the holder of a visa of one of the following subclasses:

(i) Subclass 303 (Emergency (Temporary Visa Applicant));

(ii) Subclass 427 (Domestic Worker (Temporary) -- Executive).

(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:

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

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

(c) the application is made within 28 days (or within such period specified by Gazette Notice) after:

(i) the day when that last substantive visa ceased to be in effect; or

(ii) 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:

(A) the day when that last substantive visa ceased to be in effect; and

(B) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

(d) the applicant satisfies Schedule 3 criterion 3005.

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

(a) the applicant is the holder of a Subclass 560, 562 or 571 visa that is subject to condition 8101; and

(b) the application was made on form 157P or 157P (Internet); and

(c) the applicant gives to the Minister evidence that the applicant has commenced a course of study for which the visa held was granted.

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

(a) the applicant is the holder of a Subclass 560, 562 or 571 visa that is subject to condition 8206; and

(b) the application was made on form 157C; and

(c) except if the applicant is a secondary exchange student, the applicant gives to the Minister evidence of an offer of a place with an education provider of a course of study other than the education provider of a course of study for which the visa held was granted; and

(d) the Minister is satisfied that there are exceptional circumstances justifying the change in enrolment.

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

(a) the applicant is the holder of a Subclass 570, 572, 573, 575 or 576 visa that is subject to condition 8206; and

(b) the application was made on form 157A or 157A (Internet); and

(c) except if the applicant is a secondary exchange student, the applicant gives to the Minister evidence of an offer of a place with an education provider of a course of study other than the education provider of a course of study for which the visa held was granted; and

(d) the Minister is satisfied that there are exceptional circumstances justifying the change in enrolment.

The visa applicant did not hold a substantive visa at the time of the visa application that is now under review. Accordingly he does not meet the requirements of subclause 571.211(2), (4), (5) and (6). The relevant considerations are contained in subclause 571.211(3).

The Tribunal does not have discretion to consider compelling circumstances in this application. The evidence is not disputed and it shows that the visa applicant's last held substantive visa was a subclass 571 visa that ceased on 15 March 2005. The visa applicant made his visa application on 3 May 2005, more than 28 days after his Subclass 571 visa expired.

Because the visa applicant did not make his visa application within 28 days of the expiry of his last held substantive visa, the Tribunal finds that the visa applicant has not satisfied paragraph 571.211(3)(c) and has not satisfied clause 571.211 of Schedule 2 to the Regulations.

On the basis of this finding, the Tribunal must affirm the decision under review.

The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.

I certify that the preceding 23 numbered paragraphs are a true copy of the Tribunal's statement of decision and reasons.