PANDYA (Migration)

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

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria set out in cl.600.223(2), specifically subclauses (a) and (b). Clause 600.223(2)(a) requires that the last substantive visa held by the applicant was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. Clause 600.223(2)(b) mandates that the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004, and 3005.

The Tribunal noted that the applicant had admitted to lodging her visa application on 1 February 2021 and that her last substantive visa expired on 4 August 2020. This meant the application was lodged more than 28 days after the expiry of her last substantive visa, and therefore she did not satisfy criterion 3001 of Schedule 3. The applicant's representative conceded that the applicant did not meet criterion 3001 and that her circumstances did not satisfy Schedule 3. The Tribunal rejected the representative's submission that criterion 3001 could be satisfied by meeting criterion 3004, as cl.600.223(2)(b) clearly requires satisfaction of all listed Schedule 3 criteria, not an alternative. Consequently, the Tribunal found that the applicant did not meet the mandatory requirements of cl.600.223.

The Tribunal affirmed the decision not to grant the applicant the visa, stating that despite having sympathy for the applicant's circumstances, it had no discretion as a mandatory requirement for the visa grant was not met.