Paudel Gyawali (Migration)

The Administrative Appeals Tribunal considered the case of Paudel Gyawali, an applicant for a Visitor (Class FA) visa, subclass 600. The dispute arose when the Department refused the applicant's visa application, a decision that the applicant sought to have reviewed by the Tribunal. The core of the refusal was the applicant's failure to meet Schedule 3 criteria, specifically criterion 3001, which is a requirement for applicants who do not hold a substantive visa at the time of application.

The Tribunal was required to determine whether the applicant satisfied the requirements of Schedule 3, criterion 3001, for the purpose of clause 600.223 of the Migration Regulations. This involved ascertaining the "relevant day" for the purpose of criterion 3001(1), which dictates that an application must be validly made within 28 days of that day. The applicant's last substantive visa, a subclass 485 (Temporary Graduate) Dependent visa, ceased on 1 June 2021, and she applied for the subclass 600 visa on 12 January 2022, while holding a Bridging C visa.

The Tribunal found that the applicant's last substantive visa ceased on 1 June 2021, making this the "relevant day" under Schedule 3, criterion 3001(2)(c). As the application was made on 12 January 2022, it was not made within the 28-day timeframe required by criterion 3001(1). The applicant had also failed to respond to a letter from the Department inviting comment on adverse information regarding her visa status. Despite acknowledging that the strict application of Schedule 3 might lead to unfair outcomes given the applicant's qualifications as a registered nurse and her husband's skills in critical sectors facing shortages, the Tribunal affirmed the decision not to grant the visa.