Kaur (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Visitor) tourist stream, made by an applicant who no longer held a substantive visa. The applicant sought review of a 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, which applies when an applicant applies for a visa after their last substantive visa has ceased. This criterion requires the Tribunal to be satisfied that the applicant's inability to hold a substantive visa is due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied with the conditions of their previous visas. Additionally, the Tribunal must consider whether the applicant would have been eligible for the visa had they applied earlier, intends to comply with the visa conditions, and if applicable, that their last visa was not subject to a condition preventing further grants while remaining in Australia.

The Tribunal considered the applicant's submissions that her late application was due to COVID-19 restrictions and the need to care for her pregnant daughter-in-law and another child. However, the Tribunal found that these circumstances did not constitute compelling reasons for granting the visa under criterion 3004. Furthermore, the Tribunal noted that a visa can only be granted while the applicant is in Australia, and the applicant had departed Australia. Consequently, the Tribunal concluded that the applicant could not satisfy the relevant criteria, specifically cl.600.411.

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