Nguyen (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600 (Visitor) tourist stream, made by an applicant who was in Australia. The primary dispute concerned whether the applicant met the requirements of clause 600.223 of the Migration Regulations 1994, specifically regarding the timing of the application after the expiry of their last substantive visa.

The legal issues before the Tribunal were whether the applicant satisfied the criteria for the visa, particularly Schedule 3 criteria 3001, 3003, 3004, and 3005, given that the application was lodged more than 28 days after the applicant's last substantive visa expired. The Tribunal also had to consider the applicant's stated reasons for not returning to their home country, including the COVID-19 pandemic and a desire to stay with their newborn grandchild.

The Tribunal reasoned that the applicant did not meet Schedule 3 criterion 3001 because the application was not lodged within the prescribed 28-day period. While acknowledging the applicant's daughter's explanation that the initial application was made online in April 2020 and subsequently deemed invalid, the Tribunal found that the applicant had ample opportunity to return home despite the pandemic. The Tribunal also determined that the applicant's desire to remain in Australia to be with family was not a relevant consideration for meeting the visa requirements. Consequently, the Tribunal affirmed the decision not to grant the visa.