Gill (Migration)

The applicant, Mr Gill, a citizen of India, sought review of a decision not to grant him a Visitor (Class FA) visa, subclass 600. Mr Gill had arrived in Australia on a student visa (subclass 500) which ceased on 30 September 2019. He subsequently applied for the subclass 600 visa on 19 December 2019, at which time he did not hold a substantive visa. The Administrative Appeals Tribunal, constituted by Scott Clarey, was required to determine whether Mr Gill met the requirements of clause 600.223 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether Mr Gill satisfied the criteria for the subclass 600 visa, specifically clause 600.223, given he did not hold a substantive visa at the time of his application. Clause 600.223 outlines two pathways for applicants in Australia: one for those holding a substantive temporary visa, and another for those who do not hold a substantive visa. The latter pathway requires that the applicant's last substantive visa was not of a specified type, and that they satisfy Schedule 3 criteria, including criterion 3001.

The Tribunal reasoned that as Mr Gill did not hold a substantive visa when he applied for the subclass 600 visa, he needed to satisfy the criteria under clause 600.223(2). This included satisfying Schedule 3 criterion 3001, which mandates that the visa application must be lodged within 28 days of the "relevant day." The Tribunal determined that the relevant day for Mr Gill was the last day he held a substantive visa, which was 30 September 2019. As his application was lodged on 19 December 2019, it was not made within the required 28-day period. Consequently, Mr Gill failed to satisfy criterion 3001 and therefore did not meet the requirements of clause 600.223.

The Tribunal affirmed the decision not to grant Mr Gill a Visitor (Class FA) visa.