Monroy Daniels (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by an applicant who was in Australia at the time of application but did not hold a substantive visa. The applicant sought to pursue further studies. The Administrative Appeals Tribunal was required to determine whether the applicant met the requirements of clause 600.223 of the Migration Regulations 1994.

The primary 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, the last substantive visa held was not of a specified type, and the applicant satisfies Schedule 3 criteria 3001, 3003, 3004, and 3005. Criterion 3001 requires that the visa application be lodged within 28 days of the "relevant day."

The Tribunal reasoned that the applicant's last substantive visa, a subclass 500 student visa, had ceased on 17 May 2020, and the application for the Visitor visa was lodged on 20 November 2020. This date was more than 28 days after the cessation of the applicant's substantive visa, which constituted the "relevant day" under clause 3001(2)(c). Consequently, the applicant failed to satisfy criterion 3001 and therefore did not meet the requirements of clause 600.223. The Tribunal affirmed the decision not to grant the visa.