He (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa (Subclass 600) made by an applicant who was in Australia at the time of application. The applicant's previous substantive visa had expired on 10 January 2020, and the application for the new visa was lodged on 12 February 2021, which was outside the prescribed 28-day period. The Tribunal was asked to determine whether the applicant met the criteria for Criterion 3001 of Schedule 3, which is a prerequisite for satisfying clause 600.223 of the Migration Regulations 1994 when an applicant does not hold a substantive visa at the time of application.

The central legal issue was whether the applicant could satisfy Criterion 3001, which mandates that an application for a visa must be lodged within 28 days of the "relevant day." The "relevant day" is defined by the regulations and, in this instance, referred to the last day the applicant held a substantive visa. The applicant acknowledged that her application was lodged outside this 28-day timeframe.

The Tribunal reasoned that the legislative requirements for Criterion 3001 are mandatory and cannot be waived or varied by the Tribunal. Despite the applicant's circumstances, including delays in departure due to graduation and the impact of COVID-19 border closures, which created a bar on her return to Australia and a relationship with an Australian citizen, the Tribunal was bound by the strict wording of the regulations. As the applicant failed to meet the mandatory 28-day lodgement period stipulated by Criterion 3001, the Tribunal concluded that it had no discretion to grant the visa. Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa (Subclass 600).