Dhiman (Migration)

This matter concerned an application for a Visitor (Class FA) visa (subclass 600) made by an applicant who did not hold a substantive visa at the time of application. The decision under review was affirmed by the Tribunal, presided over by Member Wendy Banfield. The central issue was whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as required by regulation 600.223(2) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the Schedule 3 criteria, which are conditions that must be satisfied by applicants who apply for a visa after their last substantive visa has ceased. Criterion 3001 was satisfied as the application was lodged within 28 days of the applicant's last substantive visa ceasing. Criterion 3003 was found not to apply to the applicant. The primary focus of the Tribunal's assessment was criterion 3004, which requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant would have been entitled to the visa if they had applied when they last held a substantive visa.

The Tribunal found that while the applicant lodged their application within the 28-day timeframe required by criterion 3001, they failed to satisfy criterion 3004. The applicant's stated reasons for not lodging the application earlier, including misreading the visa expiry date and being unable to lodge online due to COVID-19 restrictions, were not accepted as constituting factors beyond their control for the purposes of criterion 3004. Consequently, as the applicant did not satisfy the applicable Schedule 3 criteria, the Tribunal affirmed the decision not to grant the visa.