1602747 (Migration)

This matter concerned an application for a Visitor (Class FA) visa by an applicant who, at the time of application, did not hold a substantive visa. The applicant had entered Australia on 9 October 2015 on a subclass 601 Electronic Travel Authority, which ceased on 9 January 2016. The application for the subclass 600 Visitor visa was made on 4 February 2016. The Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied Schedule 3 criterion 3004, specifically the requirement that the applicant was not the holder of a substantive visa because of factors beyond their control. This criterion is a prerequisite for granting a visa under clause 600.223 of the Migration Regulations 1994 when an applicant is in Australia and does not hold a substantive visa at the time of application.

The Tribunal accepted that the applicant held an honestly-held mistaken belief that her Visitor visa allowed her to remain in Australia for 12 months and that she was unaware of its expiry on 9 January 2016. However, the Tribunal found that this ignorance, while explaining her continued presence, did not constitute a factor beyond her control. There was no evidence presented to suggest any other reason or factor that prevented her from holding a substantive visa or applying for a new visa before her previous one expired. Consequently, the Tribunal was not satisfied that the applicant met criterion 3004(c), and therefore, the requirements for the grant of the visa were not met.