Patel (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, by Ms. Patel. The dispute arose because Ms. Patel did not hold a substantive visa at the time of her application, which triggered the application of Schedule 3 criteria. The decision under review, which affirmed the refusal of the visa, was brought before the Tribunal for reconsideration.

The primary legal issue before the Tribunal was whether Ms. Patel satisfied Schedule 3 criterion 3001. This criterion requires that an application for the visa be validly made within 28 days of the applicant's last substantive visa ceasing. Ms. Patel's circumstances, specifically that she did not hold a substantive visa when she applied for the Subclass 600 visa, meant that she was subject to this mandatory requirement.

The Tribunal considered evidence that Ms. Patel had attempted to apply for the visa on 28 April 2020, but received notification that the application was invalid on 21 July 2020. A further application made on 21 July 2020 was also deemed invalid on 23 July 2020. The Tribunal noted that a paper-based application was ultimately submitted on 27 July 2020, which was outside the 28-day period following the cessation of her last substantive visa on 13 June 2020. While Ms. Patel's husband's application for the same visa was accepted, the Tribunal found that this was due to an application fee being paid, which Ms. Patel's initial application had failed to do due to an inadvertent error. The Tribunal concluded that Ms. Patel did not meet the mandatory requirement of criterion 3001.

Despite expressing sympathy for Ms. Patel's circumstances, the Tribunal found it had no discretion to grant the visa as she had failed to meet a mandatory criterion. Accordingly, the Tribunal affirmed the decision not to grant Ms. Patel the Visitor (Class FA) Subclass 600 visa.