Gyawali (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Gyawali, who sought review of the Department of Home Affairs' decision to refuse his application for a Visitor (Class FA) visa, subclass 600. Mr. Gyawali applied for this visa while holding a Bridging C visa, his last substantive visa, a subclass 485 Temporary Graduate visa, having expired on 1 June 2021.

The central legal issue before the Tribunal was whether Mr. Gyawali satisfied Schedule 3, criterion 3001, as required by clause 600.223(2) of the Migration Regulations. This criterion mandates that an applicant who does not hold a substantive visa at the time of application must have made their application within 28 days of their last substantive visa ceasing to be in effect. The Tribunal was required to determine the "relevant day" for the purpose of this 28-day period.

The Tribunal found that Mr. Gyawali's last substantive visa expired on 1 June 2021, making this the "relevant day" under Schedule 3, criterion 3001(2)(c). As Mr. Gyawali applied for the Visitor visa on 12 January 2022, he did not meet the 28-day timeframe. The Tribunal noted that Mr. Gyawali was invited to comment on this adverse information but failed to respond. Despite acknowledging that the strict application of Schedule 3 might lead to unfair outcomes given the applicant's and his wife's qualifications and work experience in critical sectors, the Tribunal affirmed the Department's decision.