Peng (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), by Mr Nan Peng. The Administrative Appeals Tribunal was required to determine whether Mr Peng met the criteria for the visa, specifically clause 600.223 of the Migration Regulations 1994. Mr Peng had applied for the visa while in Australia and did not hold a substantive visa at the time of application.

The primary legal issue before the Tribunal was whether Mr Peng satisfied Schedule 3 criteria, as required by clause 600.223(2)(b) when an applicant does not hold a substantive visa at the time of application. Specifically, the Tribunal had to consider criterion 3001, which mandates that the visa application must be lodged within 28 days of the "relevant day." The Tribunal also considered Mr Peng's submission that he had received incorrect information from a former migration agent, leading to his failure to meet this time limit.

The Tribunal found that Mr Peng's last substantive visa, a subclass UC-457, ceased on 25 June 2018, and his application for the Visitor visa was lodged on 27 May 2019. This meant the application was not lodged within the 28-day period stipulated by criterion 3001. Although the Tribunal acknowledged Mr Peng's circumstances and the agent's alleged incompetence, it concluded that it had no discretion to grant the visa if the requirements of criterion 3001 were not met.

Consequently, the Tribunal affirmed the decision not to grant Mr Peng a Visitor (Class FA) visa, subclass 600, as he failed to satisfy the mandatory criterion 3001 of Schedule 3.