WANG (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 573, made by an applicant who was not the holder of a substantive visa at the time of application, and whose application was lodged more than 28 days after her last substantive visa expired. The delegate had refused the visa on the grounds that the applicant had not complied with clause 573.211 of the Migration Regulations. The applicant explained that she had engaged a migration advisor to lodge her application for a further course of study, and she had expected the advisor to lodge the application within the required timeframe. She confirmed she had never had a visa cancelled and had not previously been granted a visa based on the satisfaction of Schedule 3 or Schedule 6 criteria.

The Tribunal was required to determine whether the applicant satisfied clause 573.211, which sets out the primary criteria for a Subclass 573 visa when an application is made in Australia. Clause 573.211 generally requires the applicant to hold a specific type of substantive visa at the time of application. However, subclause (3) provides an exception for applicants who do not hold a substantive visa. For subclause (3) to apply, the applicant's last substantive visa must have been a student visa, a special purpose visa, a Subclass 303, a Diplomatic (Temporary) (Class TF) visa (in limited circumstances), or a Subclass 497 visa. Crucially, the application must be made within 28 days of the last substantive visa ceasing to be in effect, or within a period specified by Gazette Notice. Furthermore, the applicant must satisfy Schedule 3 criterion 3005.

The Tribunal found that the applicant did not satisfy the requirements of clause 573.211. While her last substantive visa was a student visa, she failed to make her application within the prescribed 28-day period after its expiry. The Tribunal also noted that the applicant had not previously been granted a visa based on the satisfaction of Schedule 3 or Schedule 6 criteria, which would have been relevant under criterion 3005. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.