Hu (Migration)

The applicant, Hu, sought review of a decision not to grant him a Visitor (Class FA) visa, Subclass 600 (tourist stream). The application was made after his last substantive visa had ceased. The dispute centred on whether Hu met the requirements of clause 600.223 of the Migration Regulations 1994, particularly in light of his failure to hold a substantive visa at the time of application. The matter was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Hu satisfied the criteria set out in clause 600.223(2)(b), which requires an applicant who does not hold a substantive visa at the time of application to satisfy Schedule 3 criteria 3001, 3003, 3004, and 3005. Specifically, the Tribunal had to consider whether Hu was unable to hold a substantive visa due to factors beyond his control, whether there were compelling reasons for granting the visa, and whether he had substantially complied with the conditions of his previous visas.

The Tribunal found that Hu did not hold a substantive visa when he applied on 3 December 2021, as his last substantive visa, a Visitor visa Subclass 600, had expired on 17 November 2021. Consequently, clause 600.223(1) was not applicable. Clause 600.223(2)(a) was also satisfied as his last substantive visa was not a Subclass 403 visa. However, the Tribunal was not satisfied that Hu met the requirements of clause 600.223(2)(b), particularly concerning Schedule 3 criterion 3004. The Tribunal's decision indicates that the applicant's circumstances, including reliance on his daughter who allegedly misunderstood visa requirements and COVID-19 restrictions in his home country, were not sufficient to satisfy the stringent requirements of Schedule 3.

Accordingly, the Administrative Appeals Tribunal affirmed the decision not to grant Hu a Visitor (Class FA) visa.