1601111 (Migration)

The Administrative Appeals Tribunal considered whether an applicant for a Student (Temporary) (Class TU) visa satisfied criterion cl.572.211. The applicant had applied for the visa while in Australia and did not hold a specified substantive visa at the time of application. The dispute centred on whether the applicant met the alternative requirements of cl.572.211(3), which involve holding a specific type of last substantive visa, making the application within a prescribed timeframe, and satisfying Schedule 3 criterion 3005.

The Tribunal was required to determine the date on which the applicant's visa application was validly made, given that the applicant's last substantive visa, a Visitor visa, had expired on 2 December 2015. The applicant initially lodged an application on 2 December 2015 but was subsequently advised by the department that the application was invalid due to an outstanding fee. The fee was paid on 9 December 2015. The Tribunal also had to consider whether the applicant's last substantive visa, a Visitor visa, was of a specified type as required by cl.572.211(3)(b).

Applying the principles from *Butcher v MIMIA* [2005] FMCA 880, the Tribunal reasoned that for non-internet applications, the fee requirement is met when the department is placed in a position to access the funds within the prescribed period. As the applicant's application was not made via the internet, and the department was only able to access the funds on 9 December 2015 after receiving updated financial details, the Tribunal concluded that the valid application was made on 9 December 2015. Furthermore, the Tribunal found that the applicant's last substantive visa, a Visitor visa, did not meet the specified type requirement under cl.572.211(3)(b). Consequently, the Tribunal determined that the applicant did not satisfy cl.572.211(3) and, by extension, cl.572.211. The Tribunal also noted that other subclasses within the Class TU visa had similar requirements, which the applicant also failed to meet.

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