XU (Migration)

The Administrative Appeals Tribunal considered the case of XU, who sought review of a decision to refuse her application for a Visitor (Class FA) visa, subclass 600 (Visitor) tourist stream. The applicant had applied for the visa more than 28 days after her last substantive visa expired. The central dispute concerned whether the applicant met the Schedule 3 criteria, specifically criterion 3001, which requires an application to be made within 28 days of the last substantive visa ceasing.

The Tribunal was required to determine if the applicant satisfied Schedule 3 criterion 3001, as stipulated by clause 600.223(2)(b) of the Migration Regulations 1994. This criterion mandates that an applicant who is in Australia and does not hold a substantive visa at the time of application must satisfy Schedule 3 criteria, including criterion 3001, which requires the application to be made within 28 days after the last substantive visa held.

The Tribunal reasoned that the applicant's last substantive visa expired on 11 January 2021, and her current application was lodged on 23 February 2021, which was more than 28 days later. Consequently, the applicant failed to satisfy criterion 3001. While the applicant's daughter-in-law explained that COVID-19 travel restrictions had prevented their departure from Australia and that there had been procedural difficulties with obtaining a waiver of the 'no further stay' condition and submitting a paper-based application, the Tribunal found that these circumstances did not alter the strict time requirement of criterion 3001. The Tribunal affirmed the decision not to grant the visa.