Nalini Kumari (Migration)

This matter concerned an application for review of a decision by the Migration Review Tribunal (the Tribunal) to affirm the refusal of a Visitor (Class FA) visa (Subclass 600) made by Mrs Nalini Kumari. Mrs Kumari applied for the visa on 16 March 2021, at which time she did not hold a substantive visa. The Tribunal was required to determine whether Mrs Kumari satisfied the criteria for the visa application, specifically Schedule 3 criteria 3001, which mandates that an application be made within 28 days of the last day a substantive visa was held.

The central legal issue before the Tribunal was whether Mrs Kumari's application for a Visitor visa was validly made, given that it was lodged more than 28 days after the expiry of her last substantive visa on 26 December 2020. The Tribunal had to consider the application of clause 600.223(2)(b) of Schedule 2 to the Regulations, read in conjunction with Schedule 3 criteria 3001, which requires an applicant in Mrs Kumari's circumstances to satisfy specific criteria, including the 28-day lodgement period.

The Tribunal found that Mrs Kumari did not satisfy criterion 3001 because her application was lodged on 16 March 2021, which was more than 28 days after her last substantive visa expired on 26 December 2020. While the Tribunal accepted that the delay in lodging the application was due to genuine reasons, including family matters and work commitments of her son who assisted with the application, it concluded that there was no discretion under the relevant provisions to consider the circumstances of the delay. Consequently, the Tribunal affirmed the decision under review.