1607532 (Migration)

The Administrative Appeals Tribunal considered a decision concerning an applicant's eligibility for a Student (Temporary) (Class TU) visa. The applicant sought review of the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion cl.573.211. This criterion requires, among other things, that an applicant applying in Australia either holds a specified substantive visa at the time of application or, if not, that their last substantive visa was of a specified type, that the application was made within 28 days of that visa ceasing to be in effect, and that Schedule 3 criterion 3005 is satisfied.

The Tribunal reasoned that the applicant did not hold a specified substantive visa when applying in Australia and therefore had to satisfy the alternative requirements of cl.573.211(3). The evidence indicated the applicant's last substantive visa expired on 15 March 2016. The applicant's initial attempt to lodge the application was on 23 March 2016, with a subsequent attempt by registered mail on 8 April 2016. The Department considered the application valid from 13 April 2016, when authorisation for the visa application charge was received. The Tribunal found that more than 28 days had elapsed between the expiry of the applicant's last substantive visa and the date the application was considered validly made, meaning the applicant failed to meet the "28 day rule" under cl.573.211(3)(c). The Tribunal also noted that the applicant's bridging visa was not a substantive visa specified in cl.573.211.

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa, as the applicant did not satisfy the mandatory criterion cl.573.211.