Do Cabo Borges (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision not to grant the visa applicant a Visitor (Class FA) subclass 600 visa. The applicant had applied for the visa while in Australia, but had subsequently departed the country. The Tribunal was required to determine whether the applicant met the mandatory criteria for the visa, specifically clause 600.223 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the visa applicant satisfied clause 600.223 of the Migration Regulations 1994. This clause sets out specific requirements for applicants who are in Australia at the time of their application, depending on whether they hold a substantive visa. The Tribunal also considered the definition of a "substantive visa" as provided in section 5 of the Migration Act 1958.

The Tribunal found that the visa applicant was in Australia at the time of application but did not hold a substantive visa. Consequently, subclause 600.223(1) was not met. The Tribunal then examined subclause 600.223(2), which requires the applicant to meet certain Schedule 3 criteria if they did not hold a substantive visa at the time of application. The applicant's last substantive visa was a subclass 500 Student visa, which ceased on 12 September 2018. From that date until her departure from Australia, she held bridging visas. The Tribunal determined that while the applicant met subclause 600.223(2)(a), she failed to meet criterion 3001 of Schedule 3, which requires a valid application to be made within 28 days of the last day a substantive visa was held. As the application was made more than 28 days after 12 September 2018, the applicant could not satisfy this criterion.

The Tribunal affirmed the decision not to grant the visa. This outcome was also influenced by the Tribunal's attempts to contact the applicant on the day of the hearing, which were unsuccessful, and the applicant's advice that she had lodged a subclass 309 application and was contemplating further tourist visa applications.