Stark (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Visitor) in the tourist stream. The applicant, who was in Australia and did not hold a substantive visa at the time of application, had lodged their application more than 28 days after their last substantive visa expired. The Administrative Appeals Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as mandated by clause 600.223 of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3, particularly criterion 3001, which stipulates that a visa application must be lodged within 28 days of the applicant's last substantive visa ceasing to be in effect. The applicant conceded that their application was lodged on 18 February 2021, more than 28 days after their last substantive visa, a TZ417 Working Holiday visa, expired on 14 November 2020. The applicant also stated that they had received advice from a "visa agent" to apply for the visitor visa, knowing it would likely be rejected due to the late lodgement, with the intention of using an appeal process to delay their departure from Australia. However, the applicant admitted they had not actually engaged this individual.

The Tribunal found that the applicant did not satisfy criterion 3001 of Schedule 3 because the visa application was lodged significantly outside the prescribed 28-day timeframe. The Tribunal noted that the applicant's understanding of the appeal process as a means to delay departure was a matter for the Department of Home Affairs, not the Tribunal. Consequently, as the applicant failed to meet the essential criteria for the grant of the Subclass 600 visa, the Tribunal affirmed the decision not to grant the visa.