1609998 (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa. The applicant sought to have a decision not to grant the visa reviewed. The core of the dispute revolved around whether the applicant met the requirements of clause 572.211 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied clause 572.211, which outlines the criteria for holding a specified substantive visa at the time of application or, alternatively, if not holding such a visa, meeting specific conditions related to the last substantive visa held and the timing of the application. The applicant’s last substantive visa, a student visa, expired on 28 April 2016, and the applicant did not hold a substantive visa on the date of application.

The Tribunal reasoned that the applicant needed to satisfy subclause (3) of clause 572.211, which requires the application to be made within 28 days after the last substantive visa ceased to be in effect. The applicant stated they attempted to apply on 26 May 2016 and submitted a fresh application on 31 May 2016. The Tribunal noted that the applicant agreed they held no substantive visa on 29 April 2016, and therefore, the 28-day period after the expiry of their last substantive visa had passed before their applications were made. The Tribunal found that it had no discretion in applying this criterion and that equivalent criteria for other subclasses of the Class TU visa also required either holding a substantive visa on the day of application or satisfying the 28-day rule, which the applicant failed to do.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, as the applicant did not satisfy the mandatory criterion under clause 572.211.