Yamnate (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Visitor) in the tourist stream. The applicant, who had last held a substantive visa which expired on 13 May 2020, applied for the subclass 600 visa on 30 November 2020. The decision under review was made by the Migration Review Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which is a requirement for certain visa applications made in Australia when the applicant does not hold a substantive visa. Criterion 3001 requires that the visa application be lodged within 28 days of the "relevant day," which is defined by the Migration Regulations 1994.

The Tribunal found that the applicant did not satisfy criterion 3001. Applying the definition of the "relevant day" under regulation 3001(2)(c)(iii), the Tribunal determined that the relevant day for the applicant was 13 May 2020, the last day she held a substantive visa. As the application was lodged on 30 November 2020, it was made more than 28 days after the relevant day. The Tribunal noted that it had no discretion to waive this criterion. The applicant's submissions regarding the uncertainty caused by COVID-19 and the holding of a bridging visa did not alter the application of this mandatory criterion.

Consequently, as the applicant failed to satisfy criterion 3001, she did not meet the requirements for the grant of the subclass 600 visa. The Tribunal affirmed the decision not to grant the visa.