Jiang (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision to refuse a Visitor (Class FA) visa to the applicant, Ms. Jiang. The applicant had previously held a Visitor visa which expired on 5 May 2023, after which she remained in Australia on bridging visas before departing on 9 September 2023. The core of the dispute concerned the applicant's eligibility for a further Visitor visa, particularly in light of her not holding a substantive visa at the time of application and her departure from Australia.

The Tribunal was required to determine whether the applicant met the criteria for the grant of a Visitor visa, specifically considering whether there were factors outside her control that prevented her from lodging an application while holding a substantive visa, and whether there were compelling reasons for the visa to be granted. A key legal issue was the application of clause 600.411 of Schedule 2 of the Regulations, which generally prevents the grant of a Visitor visa to an applicant who is not in Australia.

The Tribunal affirmed the delegate's decision to refuse the visa. It found that the applicant had not demonstrated compelling reasons for the grant of the visa, nor had she established that factors outside her control prevented her from lodging her application while she held a substantive visa. While the applicant provided reasons related to her granddaughter's health and family circumstances, the Tribunal was not satisfied that these constituted compelling reasons or that they prevented her from lodging a timely application. Furthermore, the Tribunal noted that the applicant was not in Australia at the time of the decision, a fact that, under clause 600.411, generally precludes the grant of this visa. The Tribunal concluded that the applicant did not meet the requirements of clause 600.233.