Chen (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), made by Mr. Chen. Mr. Chen was in Australia at the time of his application and did not hold a substantive visa. The primary dispute concerned whether Mr. Chen met the criteria for the visa, specifically clause 600.223 of Schedule 2 to the Regulations, which requires applicants in Australia without a substantive visa to satisfy Schedule 3 criteria, including criterion 3001.

The legal issue before the Tribunal was whether Mr. Chen satisfied Schedule 3 criterion 3001. This criterion requires that an application for the visa be lodged within 28 days of the "relevant day," defined as 28 days from the date the applicant last held a substantive visa. Mr. Chen's last substantive visa ceased on 6 September 2018, and his application for the Visitor visa was lodged on 17 November 2020.

The Tribunal reasoned that Mr. Chen failed to meet criterion 3001 because his application was lodged significantly more than 28 days after his last substantive visa ceased. The Tribunal noted that there is no provision to grant a Tourist stream (Subclass 600) visa to an applicant in these circumstances. Consequently, the Tribunal affirmed the decision not to grant the visa. The Tribunal also decided not to refer the matter for Ministerial Intervention, though this does not preclude Mr. Chen from doing so himself.