Baber (Migration)

The applicant, a 74-year-old Canadian citizen in Australia, sought review of the delegate's decision to refuse her Visitor (Class FA) Subclass 600 visa. The delegate had refused the visa on the basis that the applicant failed to satisfy Public Interest Criterion (PIC) 3004(c) of Schedule 3 of the Migration Regulations 1994, which requires that the applicant not hold a substantive visa due to factors beyond their control. As a consequence of failing PIC 3004(c), the applicant also failed to satisfy clause 600.223 of Schedule 2 of the Regulations.

The Tribunal was required to determine whether the applicant satisfied PIC 3004(c), specifically whether her failure to hold a substantive visa at the time of application was due to factors beyond her control. This criterion is a prerequisite for satisfying PIC 3004 in its entirety, and consequently, for meeting the requirements of clause 600.223 for a Visitor visa when applying in Australia without holding a substantive visa.

The Tribunal found that the applicant had not demonstrated that her failure to hold a substantive visa was due to factors beyond her control. Consequently, she did not satisfy PIC 3004(c) and therefore failed to meet PIC 3004 as a whole. As a result, the applicant did not satisfy clause 600.223 of the Regulations. The Tribunal affirmed the delegate's decision to refuse the visa.