LUO (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Visitor) tourist stream, made by an applicant who was in Australia and did not hold a substantive visa at the time of application. The applicant's last substantive visa, a Student (TU-500) visa, ceased on 30 August 2021, and the subclass 600 visa application was lodged on 10 December 2021. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the relevant day.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3, criterion 3001, of the Migration Regulations 1994. This criterion mandates that an application for a visa made by a person in Australia without a substantive visa must be lodged within 28 days of the cessation of their last substantive visa. The Tribunal also considered whether factors such as mental health and COVID-19 restrictions could excuse the late lodgement, as suggested by the applicant's representative.

The Tribunal reasoned that criterion 3001 of Schedule 3 is a strict requirement and that the Tribunal has no discretion to extend the 28-day period or waive its requirements based on compassionate or compelling circumstances. As the applicant's last substantive visa ceased on 30 August 2021 and the application was lodged on 10 December 2021, it was lodged significantly outside the prescribed 28-day timeframe. The Tribunal found that the applicant did not satisfy criterion 3001, and therefore did not satisfy the Schedule 3 criteria necessary for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa, subclass 600, as the applicant failed to meet the mandatory criteria for the visa application.