1601037 (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), made by an applicant in Australia. The applicant did not hold a substantive visa at the time of application. The dispute centred on whether the applicant met the requirements of clause 573.211 of Schedule 2 to the Migration Regulations 1994, specifically concerning the timeframe for making the application after the expiry of their last substantive visa. The decision was made by Gabrielle Cullen, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied clause 573.211(3) of the Migration Regulations. This required the Tribunal to ascertain if the applicant's last substantive visa was of a specified type, if the current visa application was made within 28 days of that last substantive visa ceasing to be in effect, and if the applicant satisfied Schedule 3 criterion 3005. The Tribunal specifically had to consider whether it possessed any discretion to overlook the 28-day time limit.

The Tribunal found that while the applicant's last substantive visa was of the specified type (a student visa), the application was made on 28 October 2015, which was more than 28 days after their last substantive visa ceased to be in effect on 30 August 2015. The Tribunal acknowledged the applicant's reasons for the delay but concluded that it had no discretion to waive this requirement. Consequently, the applicant failed to satisfy clause 573.211(3)(c) and therefore did not meet the requirements of clause 573.211. The Tribunal noted that other subclasses within the Class TU visa class had the same requirement for applicants in Australia who did not hold a substantive visa at the time of application.

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