Galeziowski (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Other Family (Residence) (Class BU) visa, specifically the Subclass 835 (Remaining Relative) visa. The applicant sought this visa on the basis of being the remaining relative of an Australian citizen. The core of the dispute revolved around the applicant's immigration status at the time the visa application was lodged, particularly in relation to Schedule 3 criteria.

The Tribunal was required to determine whether the applicant met the requirements of Clause 835.211 of the Migration Regulations. This clause mandates that at the time of application, the applicant must either hold a substantive visa or, if not holding a substantive visa, satisfy Schedule 3 criterion 3002. The applicant was not the holder of a substantive visa when the application was made, as their last substantive visa had expired on 16 March 2016.

The applicant's mother provided evidence detailing her attempts to secure a visa extension for her son in March 2015, prior to the expiry of his tourist visa. She claimed to have received advice from the Department of Immigration to return once the baby was born and a passport had been issued, as the laws were changing. The Tribunal acknowledged the complexities and delays encountered in obtaining the child's birth certificate and subsequent Polish passport, which extended significantly beyond the applicant's visa expiry. However, the Tribunal found that regardless of the advice received or the circumstances surrounding the delays, the applicant was an unlawful non-citizen at the time of lodging the visa application. The Tribunal concluded that it did not possess discretion to waive this requirement, and therefore affirmed the decision under review.