Thapa Magar Sapkota (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa made by Thapa Magar Sapkota. The applicant sought review of a decision not to grant her the visa. The core of the dispute revolved around whether the applicant met the requirements of clause 600.223 of the Migration Regulations 1994, which necessitates satisfaction of Schedule 3 criteria when an applicant applies for a visa while in Australia without holding a substantive visa.

The Tribunal was required to determine if the applicant satisfied criterion 3001 of Schedule 3, which mandates that a visa application be lodged within 28 days of the "relevant day." The "relevant day" is defined by the regulations and, in this instance, was identified as the date the applicant's last substantive visa, a subclass 573 Student visa, ceased to be in effect, which was 15 March 2017. The Tribunal also had to consider the applicant's request for referral to the Minister for Ministerial intervention based on alleged compassionate circumstances.

The Tribunal reasoned that the applicant's Visitor visa application was lodged on 29 August 2017. As this date was more than 28 days after the relevant day of 15 March 2017, the applicant failed to satisfy criterion 3001. Consequently, the Tribunal found it unnecessary to assess criteria 3003, 3004, and 3005. Regarding the request for Ministerial intervention, the Tribunal noted that the applicant, aged 36, had not provided any medical or psychological evidence to support claims of serious, ongoing, and irreversible harm or continuing hardship, which are required to meet the Minister's Guidelines for unique or exceptional circumstances.

The Tribunal affirmed the decision not to grant the Visitor (Class FA) visa. The applicant was advised that she could seek assistance from her migration agent to make a request to the Minister for Ministerial intervention, including providing relevant supporting evidence.