Brar (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Visitor) (tourist stream), made by an applicant who had previously held a three-year visitor visa that ceased after a maximum 12-month stay. The application was made more than 28 days after the applicant's last substantive visa ceased. The Administrative Appeals Tribunal (AAT) considered the applicant's eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl.600.223 of the Migration Regulations 1994, specifically concerning the lodgement of an application within 28 days of the last substantive visa ceasing, and the satisfaction of Schedule 3 criteria, including criterion 3001 (valid application period) and criterion 3004 (compelling reasons and factors beyond control).

The Tribunal reasoned that while the applicant's last substantive visa ceased on 11 April 2020, and the 28th day thereafter fell on Saturday, 9 May 2020, the application was lodged on Sunday, 10 May 2020. Applying departmental guidelines, the Tribunal determined that the application was lodged within the extended timeframe, thus satisfying criterion 3001. Furthermore, the Tribunal found that the applicant satisfied criterion 3004, accepting that her inability to depart Australia as planned was due to COVID-19 travel restrictions, a factor beyond her control. Compelling reasons for granting the visa were also established, including the need to remain lawfully in Australia until flights resumed and it was safe to return. The Tribunal was satisfied that the applicant met all applicable Schedule 3 criteria.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, directing that the applicant met the criteria under cl.600.223 of Schedule 2 to the Regulations.