Thapa (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, Subclass 572, made by Mr. Thapa. The dispute centred on whether Mr. Thapa met the eligibility criteria for the visa, specifically clause 572.211 of Schedule 2 to the Migration Regulations 1994. The Tribunal, constituted by Member Penelope Hunter, was required to determine if Mr. Thapa satisfied the conditions of this clause, which relates to holding a specified substantive visa at the time of application or having held a specified type of substantive visa as the last substantive visa.

The Tribunal's reasoning focused on two alternative limbs of clause 572.211. Firstly, it examined whether Mr. Thapa held a specified substantive visa when he lodged his application in Australia. The evidence established that his last substantive visa, a Subclass 457 visa, had expired on 7 June 2016, and his application was filed on 30 June 2016. Therefore, he did not hold a substantive visa at the time of application. Secondly, the Tribunal considered clause 572.211(3), which applies if the applicant does not hold a substantive visa and requires the last substantive visa held to be of a specific type. Mr. Thapa's last substantive visa was a Subclass 457 visa, which was not among the types listed in clause 572.211(3)(b).

Based on this analysis, the Tribunal concluded that Mr. Thapa failed to satisfy either limb of clause 572.211. The Tribunal noted that other subclasses within the Class TU visa class also contained similar requirements for applicants in Australia who did not hold a substantive visa at the time of application. Consequently, the Tribunal affirmed the delegate's decision not to grant Mr. Thapa the Student (Temporary) (Class TU) visa.