Acharya (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by an applicant who did not hold a substantive visa at the time of application. The applicant had applied within 28 days of their last substantive visa expiring and sought a waiver of the no further stay condition. The core of the dispute revolved around whether the applicant could satisfy the Schedule 3 criteria, particularly the requirement that their inability to hold a substantive visa was due to factors beyond their control and that there were compelling reasons for granting the visa.

The Tribunal was required to determine if the applicant met the criteria for the Subclass 600 visa, specifically focusing on the application of Schedule 3, criterion 3004. This criterion necessitates that the Minister be satisfied that the applicant is not holding a substantive visa due to factors beyond their control, that compelling reasons exist for granting the visa, and that the applicant has substantially complied with the conditions of their previous visas. The Tribunal also had to consider whether the applicant would have been entitled to the visa had they applied earlier, absent the Schedule 3 requirements.

The Tribunal found that the applicant had met the requirements of clause 600.223 of Schedule 2 to the Migration Regulations. It was satisfied that the applicant's failure to hold a substantive visa was due to factors beyond their control, specifically noting that the Department had used an incorrect notification address, which practically prevented the applicant from making a further visa application in a timely manner. The Tribunal concluded that there were compelling reasons for granting the visa and that the applicant had substantially complied with their visa conditions. Consequently, the Tribunal remitted the application back to the Department for reconsideration of the remaining criteria.