Chakrabortty (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by an Indian citizen who was in Australia at the time of application. The applicant had previously held a Visitor visa that ceased on 1 January 2022, and she lodged her current application on 21 January 2022. The Administrative Appeals Tribunal was required to determine whether the applicant met the requirements of clause 600.223 of the Migration Regulations 1994, specifically focusing on whether she satisfied Schedule 3 criteria 3001 and 3004.

The primary legal issue was whether the applicant's failure to hold a substantive visa at the time of her application was due to factors beyond her control, as required by criterion 3004(c). The applicant had provided reasons such as the COVID-19 situation affecting flight availability and her knee condition, while her son cited forgetting the visa expiry date and limited internet access while on holiday. The Tribunal also considered whether there were compelling reasons for granting the visa and if the applicant had substantially complied with visa conditions.

The Tribunal found that the applicant met criterion 3001, as her application was lodged within 28 days of her last substantive visa ceasing. However, it was not satisfied that criterion 3004 was met. The Tribunal reasoned that the applicant's stated reasons for not holding a substantive visa were not demonstrably beyond her control. The son's explanation for the oversight in lodging the application was considered, but ultimately deemed insufficient to satisfy the "factors beyond the applicant's control" requirement. Consequently, the Tribunal affirmed the decision not to grant the visa.