NGUYEN (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), made by Ms. Nguyen, a national of Vietnam. The primary dispute concerned whether Ms. Nguyen met the requirements of Schedule 3 criterion 3001, which is a prerequisite for the grant of the visa under clause 600.223(2)(b) of the Migration Regulations.

The legal issue before the Tribunal was whether Ms. Nguyen's application for the visa was lodged within the prescribed 28-day period after her last substantive visa ceased. Schedule 3 criterion 3001 mandates that such an application must be lodged no more than 28 days after the applicant's last substantive visa ceased. The Tribunal was required to determine the date her last substantive visa ceased and the date her current visa application was validly lodged.

The Tribunal found that Ms. Nguyen's last substantive visa ceased on 30 July 2017. Her initial online application was lodged on 28 July 2017, but was subsequently deemed invalid. A second online application was lodged on 2 August 2017. Due to the payment not being processed until this date, the Tribunal determined that the application was lodged more than 28 days after her last substantive visa ceased, meaning she did not meet Schedule 3 criterion 3001. Despite hearing evidence regarding compassionate circumstances and the potential impact of a visa refusal on Ms. Nguyen's future, the Tribunal concluded it had no discretion regarding this specific criterion.

However, after considering the applicant's evidence and the relevant Ministerial guidelines, the Tribunal referred the matter to the Department for consideration by the Minister under section 351 of the Migration Act. The Tribunal affirmed the decision not to grant the visa.