Ramos-Drake (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), made by the applicant, Ms. Ramos-Drake. The applicant sought review of the delegate's decision to refuse her visa application. The core of the dispute revolved around the applicant's failure to meet a critical criterion for the visa due to the timing of her application relative to the cessation of her last substantive visa.

The legal issues before the Tribunal were whether the applicant satisfied the requirements of clause 600.223 of Schedule 2 to the Migration Regulations 1994, specifically whether she met Schedule 3 criterion 3001. This criterion requires that an application for a visa be lodged within 28 days of the applicant's last substantive visa ceasing. The Tribunal was also asked to consider the applicant's personal circumstances, including her work in a critical sector, study plans, and a new relationship with an Australian citizen, in the context of her referral for ministerial consideration.

The Tribunal reasoned that the applicant was in Australia when she applied for the Visitor visa and did not hold a substantive visa at that time. Consequently, she was required to satisfy Schedule 3 criteria, including criterion 3001. The applicant's last substantive visa, a Work and Holiday (Subclass 462) visa, ceased on 22 September 2019. Her application for the Visitor visa was lodged on 23 February 2021, which was more than 28 days after her last substantive visa ceased. The Tribunal found that it had no discretion to overlook this requirement.

The Tribunal affirmed the delegate's decision to refuse the visa application. It concluded that the applicant did not satisfy criterion 3001 of Schedule 3. The Tribunal also determined that the matter should be referred to the Minister for consideration, acknowledging the applicant's submissions regarding the delayed processing of a previous visa application and her personal circumstances.