Falle (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a Visitor (Class FA) visa, Subclass 600 (Tourist stream), to the applicant. The applicant had applied for the visa after her previous substantive visa expired and she had remained in Australia. The primary dispute concerned whether the applicant met Schedule 3 criteria, specifically criterion 3004, which requires the Minister to be satisfied of several factors, including that the applicant is not holding a substantive visa due to factors beyond their control and that there are compelling reasons for granting the visa.

The Tribunal was required to determine if the applicant satisfied Schedule 3 criterion 3004, given that she applied for the visa after her substantive visa had ceased. The delegate had refused the visa on the basis that the applicant did not meet this criterion. The applicant had provided reasons for her request for a further stay, citing bad weather and the pandemic in Hong Kong.

The Tribunal noted that the applicant had failed to participate in a scheduled video hearing, despite attempts to contact her. Crucially, the Tribunal found that the applicant had departed Australia on 30 November 2022, and was not in Australia at the time of the decision. This fact alone meant that the applicant did not satisfy clause 600.411 of the Migration Regulations, which requires the applicant to be in Australia at the time of the decision. Consequently, the Tribunal concluded that there was no need to determine whether the applicant met Schedule 3 criterion 3004, as she was ineligible for the visa grant regardless.

The Tribunal affirmed the delegate's decision not to grant the applicant a Visitor (Class FA) visa.