1603032 (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa made by an applicant in Australia. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant satisfied criterion cl.573.211 of the Migration Regulations 1994.

The central legal issue was whether the applicant, who did not hold a specified substantive visa at the time of application, met the alternative requirements of cl.573.211. These requirements included holding a specified pre-requisite visa, making the application within 28 days of that visa ceasing to be in effect, and satisfying Schedule 3 criterion 3005.

The Tribunal reasoned that the applicant's last substantive visa, a VF-476 skilled graduate visa, was not a pre-requisite visa for the grant of a 573 visa onshore as required by cl.573.211(2). Consequently, the applicant failed to meet this threshold requirement. The Tribunal noted that ignorance of the law was not a defence and that the requirement was one of strict liability, with no legislative discretion available. The Tribunal also found that the applicant did not meet the requirements of other subclasses within the Class TU visa class, which shared the same criterion.

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