Sun (Migration)

The applicant, a citizen of China, sought review of the decision to refuse her application for a Visitor (Class FA) visa, Subclass 600. The applicant had been in Australia since August 2019, with her last substantive visa expiring in August 2020. She subsequently applied for a Bridging Visa E and then, on 3 February 2021, for a new Visitor visa. The Department refused the application, finding that it was lodged more than 28 days after her last substantive visa ceased, meaning she did not meet Schedule 3 criterion 3001 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 criterion 3001, which mandates that an application for a visa made while in Australia without a substantive visa must be lodged within 28 days of the last substantive visa ceasing. The Tribunal was required to determine if the applicant's circumstances, particularly the impact of COVID-19 travel restrictions and her daughter's personal difficulties, provided a basis for excusing the late lodgement.

The Tribunal accepted the applicant's explanation that she was unable to depart Australia due to COVID-19 lockdowns and cancelled flights to China, and that her daughter, who managed her visa applications, was experiencing significant personal difficulties related to family violence. The Tribunal acknowledged that these factors contributed to the delay in lodging the new Visitor visa application. Despite accepting the evidence regarding the reasons for the delay, the Tribunal affirmed the delegate's decision not to grant the visa, finding that the applicant did not meet the requirements of criterion 3001. However, the Tribunal indicated it would refer the matter to the Department, suggesting a potential avenue for ministerial intervention.