Hmouda (Migration)

This matter concerned an application for review of a decision by the Migration Review Tribunal to affirm the refusal of a Visitor (Class FA) visa, subclass 600, to Mr Amer Hmouda. Mr Hmouda was in Australia when he applied for the visa and did not hold a substantive visa at that time. His last substantive visa, a Visitor – Tourist visa, expired on 3 January 2020, and he lodged his further application on 10 January 2020.

The primary legal issue before the Tribunal was whether Mr Hmouda satisfied the requirements of clause 600.223 of the Migration Regulations 1994, specifically Schedule 3 criteria 3001, 3003, 3004, and 3005, given he did not hold a substantive visa at the time of his application. The Tribunal was required to determine if Mr Hmouda was without a substantive visa due to factors beyond his control, if there were compelling reasons for granting the visa, and if he had substantially complied with the conditions of his last substantive visa and any subsequent bridging visa.

The Tribunal considered criterion 3004 of Schedule 3, which mandates satisfaction that the applicant is without a substantive visa due to factors beyond their control, that compelling reasons exist for granting the visa, and that the applicant has substantially complied with visa conditions. The Tribunal also noted the additional requirements that the applicant would have been eligible for the visa if they had applied earlier, intended to comply with visa conditions, and that their last visa was not subject to a condition preventing further permits while remaining in Australia. The Tribunal concluded that the decision under review should be affirmed.