Bhattarai (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa (subclass 600) made by Mr. Bhattarai. Mr. Bhattarai had applied for the visa after his last substantive visa, a subclass 500 Student visa, expired on 15 September 2020. He applied for the Visitor visa on 22 September 2020, meaning he did not hold a substantive visa at the time of his application. Consequently, he was required to satisfy the Schedule 3 criteria, specifically cl.600.223(2) which incorporates criteria 3001, 3003, 3004, and 3005. The Department had refused his application on the basis that he failed to satisfy criterion 3004, as it was not satisfied that factors beyond his control prevented him from applying for the Visitor visa while holding a substantive visa.

The Tribunal was required to determine whether Mr. Bhattarai satisfied Schedule 3 criterion 3004(c) and (d). Criterion 3004(c) requires that the applicant is not the holder of a substantive visa because of factors beyond their control, and criterion 3004(d) requires that there are compelling reasons for granting the visa. Mr. Bhattarai contended that he was unable to return to Nepal due to COVID-19 travel restrictions and flight cancellations, and that he was unable to visit his seriously ill mother in Nepal due to these same restrictions. He also cited his spouse's ongoing medical condition and the general toll of the pandemic lockdown on his well-being as contributing factors.

The Tribunal found that Mr. Bhattarai did not satisfy the requirements of cl.600.211, which relates to the genuine intention to stay temporarily in Australia. While acknowledging the applicant's stated reasons for his inability to depart Australia and his distress regarding his family's health, the Tribunal ultimately affirmed the decision not to grant the visa. The reasons for this affirmation are not fully elaborated in the provided text, but the conclusion indicates a failure to meet the necessary criteria for the visa grant under these circumstances.