ZHAO (Migration)

This matter concerned an application for a Visitor (Class FA) visa (Subclass 600) by a 61-year-old citizen of China who was in Australia. The applicant's previous visa had ceased on 31 December 2020, and she applied for the current visa on 23 March 2021. The delegate refused the visa because the applicant did not satisfy Public Interest Criterion (PIC) 3001 of Schedule 3 of the Migration Regulations 1994 (Cth), which in turn meant she failed to satisfy clause 600.223 of the Regulations. The applicant sought review of this refusal decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 600.223 of the Regulations, which required her to meet Schedule 3 criteria, including PIC 3001, as she had applied for the visa more than 28 days after her last substantive visa ceased. PIC 3001 requires an applicant to have made their application within 28 days of their last substantive visa ceasing, or to satisfy specific exceptions. The Tribunal was also required to consider whether there was any discretion to waive this criterion or consider the applicant's circumstances, particularly in light of a waiver that had been granted to her husband for a similar condition on a previous visa, although notice of the applicant's waiver had been sent to an incorrect email address.

The Tribunal found that the applicant did not satisfy PIC 3001. The relevant day for the purpose of PIC 3001 was determined to be the day after her last substantive visa ceased, as she had not applied within 28 days. The Tribunal noted that there was no discretion to waive PIC 3001 or to consider the applicant's circumstances in this regard. The fact that a waiver had been granted to her husband, and that notice of her own waiver had been misdirected, did not alter the strict requirements of PIC 3001. Consequently, as the applicant failed to satisfy PIC 3001, she also failed to satisfy clause 600.223, meaning she could not meet the criteria for the grant of the visitor visa.

The Tribunal affirmed the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa.