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austlii:cth/MRTA/2002/3645
appellant. The Tribunal remitted the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration on the basis that the visa applicant met Regulation 572.212.
A Chinese student applied for a new Australian student visa but was refused because the immigration department said he hadn't provided school records to prove he attended classes and passed his subjects. The student appealed to the Migration Review Tribunal and provided his final school results and attendance records, which showed he had actually passed everything and attended satisfactorily. The Tribunal found that because this new evidence showed he had complied with his visa conditions, the refusal should be sent back to the department for reconsideration. The Tribunal also noted that the visa rules had changed slightly during the time his previous visa was valid, but he had complied with both the old and new versions of the rules.
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CATCHWORDS: Review of visa refusal - Subclass 572 - student - further information provided
REVIEW APPLICANTNote that the CMS data merge provides only the first Review Applicant's details. Please check CMS and insert other Review Applicant's details as necessary.
DECISION: The Tribunal remits the application made by the visa applicant for a Student (Temporary) (Class TU) visa, subclass 572 to Department of Immigration and Multicultural and Indigenous Affairs for reconsideration on the basis that the review applicant meets Regulation 572.212.
1. 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). WU Jian (the visa applicant), a male national of the Peoples Republic of China, born on 23 October 1982, applied for a Student (Temporary) (Class TU) visa, subclass 572, on 13 March 2002. The delegate's decision to refuse to grant the visa was made on 4 April 2002.
2. The delegate stated in the Decision Record that the visa applicant had not provided academic transcripts from Doncaster Secondary College for semesters one and two for 2000 and semesters one and two for 2001. The delegate stated that she was therefore not satisfied that the review applicant had complied substantially with condition 8202 and therefore did not meet Regulation 572.212, which requires that the review applicant must have complied substantially with the conditions to which the visa held or last held was subject.
3. On 1 May 2002, the visa applicant provided to the Tribunal a VCE Results Summary Statement dated 17 December 2001, which showed the visa applicant's results for unit 1 & 2 subjects in 2000 and for unit 3 & 4 subjects in 2001.
4. The visa applicant also provided copies of other documents which related to availability of funds, letter of offer by MIBT & Deakin, statement of satisfactory attendance by Doncaster Secondary College and school reports for 2000 and 2001. Copies of these documents provided were placed on the Department's file for return to the Department.
5. Under section 360(2)(a) of the Act the Tribunal considered that it should decide the review in favour of the visa applicant on the basis of the material before it.
6. An applicant for a subclass 572 visa must satisfy the criteria set out in Part 572 of Schedule 2 to the Regulations. Clause 572.21 prescribes criteria to be satisfied at time of application and clause 572.22 prescribes the criteria to be satisfied at the time of decision.
7. Clause 572.212 requires that the visa applicant complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject. The delegate found that the review applicant did not meet Regulation 572.212.
8. The visa last held by the visa applicant was granted on 27 August 1999 and was valid until 15 March 2002 (the relevant visa).
9. At the time of grant, the relevant visa was subject to condition 8202 (the original condition 8202) which stated:
(b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and
(c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and
(d) comply with any requirement of the education provider in relation to payment of fees for the course.
10. Generally the Tribunal must have regard to visa conditions that were applied when the visa was granted see - Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240; (1999) 94 FCR 91
11. However item 4 of Schedule 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 applied a new condition 8202 (the new condition 8202) to all student visas in effect on 21 December 2000 and granted after this date and before 1 July 2001.
12. From 21 December 2000, the new condition 8202 applied to the visa applicant (see Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498):
(1) This item applies to the following visas (and only those visas):
(a) all student visas that are in effect when this item commences;
(b) all student visas that are granted after this item commences but before 1 July 2001.
(2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958.
(a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student--the holder is enrolled in a full-time course of study; and
(b) in any other case--the holder is enrolled in a registered course; and
(c) in the case of a holder whose education provider keeps attendance records--the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i) for a course that runs for less than a semester--for the course; or
(ii) for a course that runs for at least a semester--for each term and semester of the course; and
(d) in any case--the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i) for a course that runs for less than a semester--for the course; or
(ii) for a course that runs for at least a semester--for each term or semester (whichever is shorter) of the course.
means a visa described in the Migration Regulations 1994 as a Student (Temporary) (Class TU) visa.
13. On 1 May 2002 the visa applicant provided a statement of his VCE results. He obtained an "s" or satisfactory result for all the units studied in 2000 and 2001 and was awarded the Victorian Certificate of Education. The review applicant also provided evidence of satisfactory attendance in 2000 and 2001 from Doncaster Secondary College.
14. On the basis of the evidence submitted to the Tribunal (which was not available to the delegate) The Tribunal finds that the review applicant has complied with the attendance and academic requirements of both the original and new condition 8202. There is no evidence before the Tribunal that the review applicant has not complied with the other requirements specified in the original and new condition 8202. There is also no evidence before the Tribunal that the review applicant failed to comply with other visa conditions.
15. In the circumstances, the Tribunal considers that the appropriate course is to remit the application to the Department for reconsideration, having regard to the findings of the Tribunal.
16. The Tribunal remits the application made by the visa applicant for a Student (Temporary) (Class TU) visa, subclass 572 to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration on the basis that the visa applicant meets Regulation 572.212
(1999) 94 FCR 91
The Tribunal remitted the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration on the basis that the visa applicant met Regulation 572.212.