Gaddam (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), made by an applicant who was not the holder of a substantive visa at the time of application. The decision under review affirmed the refusal of this visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 600.223 of the Migration Regulations 1994. This clause mandates that the Tribunal be satisfied that the applicant was in Australia at the time of application and, crucially, either held a substantive temporary visa (other than a subclass 403 visa) or, if not holding a substantive visa, that their last substantive visa was not a subclass 403 visa and they satisfied the Schedule 3 criteria (3001, 3003, 3004, and 3005).

The Tribunal found that the applicant was in Australia at the time of application and that their last substantive visa, a student visa, had expired on 4 March 2021. The applicant had applied for a bridging visa on 10 March 2021, which was granted on 30 April 2021, and subsequently applied for the Visitor visa on 6 May 2021. The Tribunal was satisfied that the applicant did not hold a substantive visa when applying for the Visitor visa and that their last substantive visa was not a subclass 403 visa, thus satisfying clause 600.223(2)(a). However, the Tribunal was not satisfied that the applicant met Schedule 3 criterion 3001, which requires an application to be validly made within 28 days of the relevant day. The Tribunal determined the relevant day to be the cessation of the applicant's substantive visa on 4 March 2021, meaning the application lodged on 6 May 2021 was outside this timeframe. While acknowledging the applicant's reasons for remaining in Australia due to pandemic-related travel restrictions and their desire to avoid a visa refusal, the Tribunal concluded that these circumstances did not satisfy the Schedule 3 criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa.