Kuttattuthottathil Paily (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Visitor) in the tourist stream. The applicant sought review of a decision not to grant her the visa. The central dispute revolved around whether the applicant met the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the "relevant day" when the applicant does not hold a substantive visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, particularly criterion 3001, for the grant of a Subclass 600 visa. This criterion mandates that the visa application must be lodged within 28 days of the applicant's last substantive visa ceasing to be in effect. The applicant argued that her delay in lodging the application was due to the Department's slow processing of her request for a waiver of the "no further stay" condition, a request made concurrently with her husband's, which was granted promptly.

The Tribunal reasoned that it did not possess the discretion to create exceptions to the legislative requirements of criterion 3001, even if departmental processing delays may have contributed to the applicant's situation. The applicant's last substantive visa expired on 17 August 2020, and she applied for the visa under review on 30 December 2020, which was significantly more than 28 days later. Consequently, the Tribunal concluded that the applicant failed to satisfy criterion 3001 and, therefore, could not meet the requirements of clause 600.223 for the grant of the visa.

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