Malla (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by an applicant who did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant satisfied the Schedule 3 criteria as mandated by regulation 600.223(2) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3, specifically criterion 3001, which stipulates that an application must be lodged within 28 days of the "relevant day". The applicant's son contended that the applicant was unable to depart Australia due to the COVID-19 pandemic, and that a genuine mistake had been made regarding the visa application timing. However, the Tribunal noted that the applicant had been informed by the Department that a Visitor (Tourist) (subclass 600) visa could not be granted if the application was made more than 28 days after the applicant's last substantive visa ceased.

The Tribunal found that the applicant did not satisfy criterion 3001 because the application was not lodged within 28 days of the relevant day, as defined in the Migration Regulations. Despite the applicant's submission that the inability to depart was due to factors beyond their control, such as the COVID-19 pandemic, this did not overcome the specific time limit imposed by criterion 3001. As the applicant failed to satisfy this essential criterion, the Tribunal concluded that the decision under review, which refused the visa, should be affirmed.