Chitty (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Visitor) in the tourist stream. The applicant had applied for the visa while in Australia but 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 requires an application to be lodged within 28 days of the last substantive visa ceasing. The applicant's last substantive visa, a Temporary Skilled Post-Study Work visa, expired on 19 January 2020. The application for the Visitor visa was lodged on 2 March 2021, significantly more than 28 days after the expiry of the applicant's last substantive visa. The Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, particularly criterion 3001, for the grant of the Visitor visa.

The Tribunal considered whether the applicant met criterion 3001 of Schedule 3. This criterion mandates that the visa application must be lodged within 28 days of the 'relevant day', which is defined by the regulations. The applicant argued that their failure to lodge within this timeframe was due to circumstances arising from the COVID-19 pandemic, including travel restrictions preventing departure from Australia, and previous withdrawn student visa applications. The applicant submitted evidence such as a Confirmation of Enrolment certificate and a letter explaining their immigration history and the reasons for lodging the onshore Visitor visa application late. However, the Tribunal noted that the Migration Regulations, specifically clause 600.223(2) in conjunction with Schedule 3 criteria, provided no power to consider such circumstances when an applicant fails to meet the 28-day lodgement requirement.

The Tribunal concluded that, as the applicant did not lodge their Visitor visa application within the prescribed 28-day period after their last substantive visa ceased, they failed to satisfy criterion 3001 of Schedule 3. The Tribunal found that there was no provision within the regulations to grant a Tourist Stream (subclass 600) visa to an applicant in these circumstances, irrespective of the reasons for the delay, including the impact of COVID-19 border closures. Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa.