Joshi (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector visa). The primary dispute concerned whether the applicant met the eligibility criteria for the visa, particularly in circumstances where the application was made in Australia but the applicant did not hold a specified substantive visa at that time. The applicant and a secondary applicant were offshore during the application process and subsequent Tribunal proceedings.

The central legal issue before the Tribunal was to determine if the applicant satisfied criterion cl.573.211 of the Migration Regulations 1994. This criterion requires that if a visa application is made in Australia and the applicant does not hold a specified substantive visa, then the applicant must have held a last substantive visa of a specified type (including a student visa), made the current application within 28 days of that last visa ceasing, and satisfied Schedule 3 criterion 3005. The Tribunal also had to consider whether the applicants met the requirements for other subclasses within the Class TU visa class, which shared similar criteria.

The Tribunal reasoned that as the applicant did not hold a specified substantive visa when applying in Australia, the requirements of cl.573.211(3) were engaged. The evidence indicated the applicant had been offshore since June 2017 and remained offshore in Nepal at the time of the hearing. Despite being invited to attend the hearing by phone and being granted access to case materials by their new migration agent, the applicants did not satisfy the conditions regarding their last substantive visa and the timeframe for application. Consequently, the Tribunal concluded that the applicant did not meet the necessary criteria.

The Tribunal affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.