Assoune Giacalone (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by the applicant, Mr Assoune Giacalone. The applicant applied for the visa while in Australia and did not hold a substantive visa at the time of application. The primary dispute revolved around whether the applicant met the Schedule 3 criteria, specifically criterion 3001, which is a prerequisite for granting a visa under these circumstances. The Administrative Appeals Tribunal was tasked with determining if the applicant satisfied these requirements.

The legal issue before the Tribunal was whether the applicant met the requirements of clause 600.223(2) of the Migration Regulations 1994, which mandates satisfaction of Schedule 3 criteria 3001, 3003, 3004, and 3005 when an applicant is in Australia without a substantive visa at the time of application. Specifically, the Tribunal had to assess if the applicant's application was lodged within 28 days of the "relevant day" as defined in criterion 3001, and if other conditions within Schedule 3 were met.

The Tribunal found that the applicant's last substantive visa, a Working Holiday (subclass 417) visa, ceased on 15 December 2020, and the Visitor (subclass 600) visa application was lodged on 19 April 2021, meaning the applicant did not hold a substantive visa and the application was lodged outside the 28-day timeframe stipulated by criterion 3001. While the applicant explained that he had been attempting to navigate further visa applications and had withdrawn a previous application, the Tribunal determined that these circumstances did not satisfy the strict requirements of Schedule 3. The Tribunal affirmed the delegate's decision not to grant the visa.