Isayed (Migration)

The Administrative Appeals Tribunal (Cth) considered an application for a Student (Temporary) (Class TU) visa made by an applicant who was in Australia and held a Prospective Marriage (subclass 300) visa at the time of application. The dispute centred on whether the applicant met the criteria for the subclass 572 visa, specifically clause 572.211 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 572.211, which outlines the requirements for a visa application made in Australia. This clause stipulates that an applicant must either hold a specified substantive visa at the time of application or, if not, meet alternative criteria. These alternatives require that the applicant's last substantive visa was of a specified type, that the application was made within a particular timeframe after that visa ceased to be in effect, and that Schedule 3 criterion 3005 was satisfied.

The Tribunal reasoned that the applicant, holding a subclass 300 visa, did not hold a substantive visa of a type specified in clause 572.211(2). Consequently, the applicant was required to satisfy subclause (3). However, the Tribunal found that the applicant's last substantive visa, the subclass 300 visa, was not a student visa or any of the other specified visa types listed in clause 572.211(3)(b). As this fundamental requirement was not met, the Tribunal concluded that the applicant did not satisfy clause 572.211(3) and therefore did not meet the criteria for the subclass 572 visa. The Tribunal noted that it had no discretion to consider the applicant's personal circumstances.

The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal also noted that any secondary applicants were dependent on the success of the primary applicant's claim.