Bhattacharjee (Migration)

The applicant, Ms. Bhattacharjee, sought review of a decision to refuse her application for a Subclass 600 (Visitor) visa. The primary issue before the Administrative Appeals Tribunal was whether Ms. Bhattacharjee met Schedule 3 criterion 3001, which requires an applicant for a Visitor visa to hold a substantive visa at the time of application, or to have applied for a bridging visa within 28 days of their last substantive visa ceasing. Ms. Bhattacharjee had not held a substantive visa for more than 28 days when she lodged her application.

The Tribunal was required to determine if the circumstances surrounding Ms. Bhattacharjee's failure to meet Schedule 3 criterion 3001 were such that the criterion should be waived or if the delegate's decision to refuse the visa was otherwise affected by an error of law. The applicant's representative explained that the failure to meet the criterion was due to a misunderstanding of immigration laws, compounded by the adverse impact of the COVID-19 pandemic. Specifically, the applicant's return flight had been cancelled by the airline due to travel restrictions, and there was a belief that the Department of Home Affairs would automatically extend visas for those unable to depart Australia.

The Tribunal found that the applicant had indeed lodged her application more than 28 days after her last substantive visa ceased, and therefore did not meet Schedule 3 criterion 3001. While acknowledging the impact of the pandemic and the applicant's stated intention to depart Australia, the Tribunal concluded that these factors did not provide a basis to depart from the clear requirements of the regulations. The Tribunal affirmed the delegate's decision to refuse the visa.