Nunkoo (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Visitor (Class FA) visa, subclass 600, made by Mr. Nunkoo. The applicant was in Australia at the time of application but did not hold a substantive visa. The core of the dispute revolved around whether the applicant had met the requirements of Schedule 3 of the Migration Regulations, specifically the criterion relating to the timing of the visa application after the cessation of the applicant's last substantive visa.

The primary legal issue before the Tribunal was whether the applicant had lodged the Visitor visa application within 28 days of the cessation of their last substantive visa, as required by Schedule 3 criteria 3001. The applicant's last substantive visa, a Tourist (FA-600) visa, ceased on 6 November 2020, and the application under review was lodged on 20 December 2020, which was more than 28 days later.

The Tribunal reasoned that the requirement to lodge within 28 days of the last substantive visa was a mandatory criterion under clause 600.223(2)(b) and Schedule 3 criterion 3001. The Tribunal found that the applicant had not met this criterion as the application was lodged outside the prescribed timeframe. The Tribunal stated that it had no discretion to waive this requirement, regardless of any circumstances that may have led to the late lodgement, such as international border closures and awaiting repatriation flights. The Tribunal concluded that it was unable to consider such external factors in its determination of the visa application.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa. The Tribunal noted that it did not have responsibility for the operational aspects of maintaining lawful status for individuals in such situations, suggesting that this was a matter for the Department of Home Affairs or potentially Ministerial Intervention.