Lin (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Visitor (Class FA) visa, subclass 600. The applicant was in Australia at the time of application but did not hold a substantive visa. The applicant's sponsor employer had withdrawn their nomination, and the applicant was awaiting the birth of a new child. The Tribunal was tasked with determining whether the applicant met the requirements of clause 600.223 of the Migration Regulations.

The central legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, as they did not hold a substantive visa at the time of application. Clause 600.223(2)(b) requires that if an applicant in Australia does not hold a substantive visa, their last substantive visa must not be a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, and they must satisfy Schedule 3 criteria 3001, 3003, 3004, and 3005. Schedule 3 criterion 3001 mandates that the visa application must be made within 28 days of the "relevant day."

The Tribunal reasoned that the applicant's last substantive visa, a subclass 457 visa, ceased on 18 January 2020. The application for the Visitor visa was lodged on 4 December 2020, which is significantly more than 28 days after the cessation of the applicant's last substantive visa. Consequently, the applicant failed to satisfy criterion 3001 of Schedule 3. The Tribunal affirmed the decision under review, finding that the applicant did not meet the requirements for the visa.