KURIAN (Migration)

This matter concerned an application for review of a decision not to grant a Subclass 600 (Visitor) visa, Tourist stream, to Mr Kurian, a national of India. Mr Kurian had arrived in Australia on a Subclass 457 visa, which was later cancelled. Following a successful review of the cancellation decision by the Tribunal, Mr Kurian applied for the Visitor visa while holding a Bridging visa. The core dispute revolved around whether Mr Kurian met the eligibility requirements for the Visitor visa, specifically in relation to Schedule 3 criteria.

The primary legal issue before the Tribunal was whether Mr Kurian satisfied clause 600.223 of the Migration Regulations 1994. This clause outlines the criteria for applicants who are in Australia at the time of application and do not hold a substantive visa. Specifically, it requires that the applicant's last substantive visa was not of a prescribed type and that they satisfy Schedule 3 criteria, including 3001, 3003, 3004, and 3005. The Tribunal was required to determine if Mr Kurian met these Schedule 3 criteria, particularly in light of the timing of his visa application relative to the notification of the Tribunal's decision to set aside the cancellation of his previous substantive visa.

The Tribunal reasoned that Mr Kurian did not hold a substantive visa at the time of his application and that his last substantive visa was not of a type excluded by clause 600.223. Therefore, the central question became whether he met the Schedule 3 criteria. Mr Kurian argued that Schedule 3001(d) applied, which allows for consideration if the application was lodged within 28 days of notification of a Tribunal decision to set aside a visa cancellation. The Tribunal found that Mr Kurian was notified of the decision to set aside the cancellation on 10 September 2018, and his application for the Visitor visa was lodged on 11 October 2018, which was more than 28 days after notification. Consequently, Mr Kurian failed to satisfy criterion 3001.

As Mr Kurian did not satisfy the threshold requirement of criterion 3001, he could not meet the requirements of clause 600.223. The Tribunal concluded that it had no discretion in this matter and affirmed the decision not to grant the Visitor visa.