Jiang (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, Tourist stream, by an applicant who was in Australia at the time of application. The applicant had not held a substantive visa at the time of application. The Tribunal was required to determine whether the applicant met the Schedule 3, Public Interest Criteria 3001 for the purposes of clause 600.223(2) of Schedule 2 to the Migration Regulations 1994.

The central legal issue was whether the applicant's application for the visa was made within 28 days after the last day they held a substantive visa, as required by Public Interest Criterion 3001. The applicant's last substantive visa had ceased on 26 March 2020, and the current application was lodged on 17 September 2020, which was outside the 28-day timeframe.

The Tribunal reasoned that clause 600.223(2)(b) requires an applicant in these circumstances to satisfy Schedule 3 criteria, including criterion 3001. Criterion 3001 mandates that the application must be validly made within 28 days after the last day the applicant held a substantive visa. Despite hearing evidence regarding the applicant's circumstances, including cancelled flights due to COVID-19 and varying advice received from departmental officers, the Tribunal found it had no discretion to extend or waive this 28-day period.

Consequently, as the applicant's visa application was not made within the prescribed 28-day period, they did not satisfy criterion 3001. Therefore, the applicant did not meet the requirements of clause 600.223, and the Tribunal affirmed the decision not to grant the visa.