Dhillon (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, made by an applicant who was in Australia at the time of application. The applicant had not held a substantive visa since 19 March 2020. The application for the visa was lodged on 10 May 2020, which was more than 28 days after the applicant's last substantive visa ceased. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the grant of the visa, specifically concerning the timeframe for lodging the application after the cessation of a substantive visa. The Tribunal was required to determine if the applicant had met the requirements of clause 600.223(2)(b) of the Migration Regulations, which necessitates satisfying Schedule 3 criteria, including criterion 3001. Criterion 3001 requires an application to be validly made within 28 days after the relevant day, which in this case was the day the applicant's last substantive visa ceased.

The Tribunal reasoned that clause 600.223(2)(b) and Schedule 3 criterion 3001 imposed a mandatory requirement that the application be lodged within 28 days of the applicant's last substantive visa ceasing. The evidence clearly showed that the applicant's last substantive visa ceased on 19 March 2020, and the application was lodged on 10 May 2020, a period exceeding 28 days. The Tribunal found that this failure to meet the time limit was determinative, and there was no discretion available to waive this requirement or consider any circumstances that led to the late lodgement. While the Tribunal acknowledged the applicant's personal circumstances, including concerns about the COVID-19 pandemic and the desire for her to remain with her son in Australia, it reiterated that its decision must be based solely on the applicable law.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa, subclass 600, as the applicant failed to meet the mandatory lodgement timeframe stipulated by the Migration Regulations.