Alharbi (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (tourist stream), made by Mr Muslim Alharbi. The dispute arose because the applicant was not the holder of a substantive visa at the time of his application. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the grant of the visa, specifically clause 600.223 of the Migration Regulations 1994.

The Tribunal considered whether the applicant satisfied clause 600.223, which outlines the requirements for applicants in Australia who do not hold a substantive visa at the time of application. This clause necessitates that the applicant's last substantive visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, and that they satisfy Schedule 3 criteria 3001, 3003, 3004, and 3005. The applicant admitted to lodging the application on 2 March 2021, with his last substantive visa having expired on 22 February 2021.

The Tribunal found that the applicant's circumstances, including a misunderstanding of his previous visa's expiry date, the imposition of COVID-19 travel restrictions preventing departure, and his subsequent application for a new visa as soon as he became aware of his unlawful status, constituted compelling reasons for the grant of the visa. The Tribunal noted the applicant's lack of prior non-compliance, his brief period of unlawfulness (8 days), and his engagement of a migration agent to regularise his status. These factors, combined with the ongoing medical treatment and incapacity for travel, and the need to remain in Australia to support his adult child's high-level studies, led the Tribunal to conclude that the applicant met the requirements of clause 600.223.

Accordingly, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria for the grant of the visa.