Huang (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), by an applicant who had applied for the visa after their last substantive visa had expired. The applicant had arrived in Australia on a Subclass 600 visa in 2019, and a further Subclass 600 visa was granted in December 2020, expiring on 1 October 2021. The applicant lodged a further application for a Subclass 600 visa on 8 December 2021, after their substantive visa had ceased. The applicant's daughter, acting on their behalf, contended that a prior paper application lodged on 25 October 2021 was lost by the Department, and that medical conditions and COVID-19 related travel disruptions had prevented a timely application. The Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3004, as required by clause 600.223(2) of the Migration Regulations 1994. This criterion applies when an applicant applies for a visa while in Australia and does not hold a substantive visa at the time of application. The Tribunal was required to determine if the applicant was not the holder of a substantive visa due to factors beyond their control, if there were compelling reasons for granting the visa, and if the applicant had substantially complied with the conditions of their previous visas. Additionally, the Tribunal had to consider whether the applicant would have been entitled to the visa if they had applied before their last substantive visa expired.

The Tribunal found that while the Department accepted the applicant's claim that an earlier application was misplaced, this did not automatically satisfy criterion 3004. The Tribunal noted that criterion 3004 requires satisfaction that the applicant is not the holder of a substantive visa due to factors beyond their control, and that there are compelling reasons for granting the visa. The Tribunal's reasoning focused on the applicant's failure to satisfy the Schedule 3 criteria, which are a prerequisite for the grant of the visa in these circumstances. The Tribunal concluded that as the applicant did not satisfy the applicable criteria for the grant of a Subclass 600 (Visitor) visa, the decision under review had to be affirmed.