Cui (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by an applicant who did not hold a substantive visa at the time of application. The applicant's daughter was responsible for lodging previous visa applications and explained that due to work commitments and travel, she missed the deadline for her mother's renewal application. The applicant also cited concerns about China's COVID-19 policies, including lockdowns and potential food shortages, as reasons for wishing to remain in Australia, and noted she had recently tested positive for COVID-19. The review was heard by Member Lilly Mojsin of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria set out in cl.600.223 of the Migration Regulations 1994, specifically concerning the requirement to meet Schedule 3 criteria when applying without a substantive visa. This involved determining whether the applicant's failure to apply for a visa while holding a substantive visa was due to factors beyond her control and whether there were compelling reasons for the grant of the visa, as stipulated in Schedule 3, clauses 3003 and 3004.

The Tribunal affirmed the delegate's decision not to grant the visa. The Tribunal found that the applicant's explanation for not applying within time, which relied on her daughter's forgetfulness due to work and travel, did not constitute factors beyond the applicant's control for the purposes of Schedule 3. Furthermore, while acknowledging the applicant's concerns regarding COVID-19 in China and her personal health, the Tribunal was not satisfied that these presented compelling reasons for the grant of the visa under the relevant regulations. Consequently, as the applicant did not satisfy the applicable criteria, the decision under review was affirmed.