Dhaubhadel (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600, made by Ms. Dhaubhadel. The applicant had applied for the visa more than 28 days after her last substantive visa, a Student (subclass 500) visa, expired on 8 April 2020. The core of the dispute was whether the applicant met the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the cessation of the last substantive visa, unless certain exceptions apply.

The legal issue before the Tribunal was whether Ms. Dhaubhadel satisfied the Schedule 3 criteria, particularly criterion 3001, for the grant of a Visitor (subclass 600) visa. The Tribunal was required to determine if the applicant's circumstances, including financial difficulties and mental health issues exacerbated by COVID-19 restrictions, provided a basis for an exception to the 28-day lodgement rule, or if the Tribunal had discretion to consider these circumstances. The Tribunal also considered whether the matter warranted referral for ministerial intervention.

The Tribunal reasoned that criterion 3001 of Schedule 3 was not met because the application was lodged significantly more than 28 days after the applicant's last substantive visa expired. The Tribunal noted that there is no provision within the regulations to grant a Visitor (subclass 600) visa to an applicant in these circumstances. While acknowledging the applicant's stated reasons for the delay, including financial hardship and mental health struggles, the Tribunal found that these circumstances were not sufficiently unique or exceptional to warrant a referral for ministerial consideration, despite expressing some sympathy.

Ultimately, the Tribunal affirmed the delegate's decision not to grant the visa. The Tribunal concluded that it was not satisfied that the applicant met the necessary Schedule 3 criteria, and therefore, the Visitor (subclass 600) visa could not be granted. The applicant was advised that she could still make a direct request to the Minister with additional supporting evidence.