ROJAS CASTRO (Migration)

This matter concerned an appeal by Ms Andrea Aracelli Rojas Castro, a 17-year-old national of Peru, against a decision to refuse her application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream). Ms Rojas Castro had been in Australia since 31 August 2008, most recently as a dependent on her mother's Subclass 457 visa, which expired on 26 March 2018. An initial online application for a Visitor visa was made on 23 March 2018, but it was later deemed invalid due to non-payment of the required fee, with the applicant's mother being advised that the exemption for diplomatic passport holders did not apply and that new applications were necessary.

The primary legal issue before the Tribunal was whether Ms Rojas Castro met the requirements of clause 600.223 of the Migration Regulations 1994. Specifically, as Ms Rojas Castro did not hold a substantive visa at the time of her application and her last substantive visa was not of a type excluded by the regulations, the Tribunal was required to determine if she satisfied the Schedule 3 criteria, particularly criterion 3001. This criterion mandates that an application for a visa must be lodged within 28 days of the "relevant day," which is defined by the regulations.

The Tribunal found that Ms Rojas Castro did not satisfy criterion 3001 because her application was not lodged within the prescribed 28-day period. Her substantive visa ceased on 26 March 2018, and the subsequent application for a Visitor visa was made on 26 April 2018, which was 31 days after the expiry of her previous visa. Consequently, she failed to meet the requirements of clause 600.223. The Tribunal also considered a request for referral to the Minister for Ministerial Intervention under section 351 of the Migration Act 1958, but after reviewing the ministerial guidelines, it decided not to make such a referral, noting that Ms Rojas Castro could still make a direct request to the Minister.

The Tribunal affirmed the decision not to grant Ms Rojas Castro a Visitor (Class FA) visa.