Erro (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), reviewed by the Tribunal. The applicant sought to argue that Schedule 3 criteria did not apply to their circumstances, contending they held a substantive Subclass 600 visitor visa at the time of their second visitor visa application, even though that first visa was no longer in effect. The Tribunal was required to determine whether the applicant was a holder of a substantive visa at the time of their application for the visa under review.

The Tribunal considered whether the applicant held a substantive visa when they lodged their second visitor visa application on 24 July 2020. The applicant’s first Subclass 600 Visitor visa, granted on 31 December 2019, was valid for 12 months and permitted stays of no longer than three months per occasion. The Tribunal found that by 24 July 2020, this first visa had ceased to be in effect for more than 28 days. The applicant's representative argued that the visa was still "held" by the applicant, even if not "in effect" for entry or stay purposes. However, the Tribunal rejected this interpretation, finding that the applicant did not hold a substantive visa at the time of their second application.

The Tribunal's reasoning was based on the plain meaning of the Migration Regulations. Specifically, it considered that for Schedule 3 criteria to be avoided, the applicant must hold a substantive visa at the time of application. The definition of "relevant day" in clause 3001(2) of Schedule 3 refers to the last day an applicant held a substantive visa, indicating a distinction between holding a visa and its period of effect. As the applicant did not satisfy the criteria for the grant of a Subclass 600 visa, including the requirement to hold a substantive visa at the time of application or to satisfy Schedule 3 criteria, the Tribunal affirmed the decision not to grant the visa.