Kumar (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, before the Tribunal. The applicant did not hold a substantive visa at the time of application and had not previously held a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream. The central issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005.

The Tribunal was required to determine if the applicant met the Schedule 3 criteria, which are conditions for granting a visa when an applicant does not hold a substantive visa at the time of application. Criterion 3001 required the application to be lodged within 28 days of the relevant day, which was the last day the applicant held a substantive visa. Criterion 3004, in particular, required the Tribunal to be satisfied that the applicant's failure to hold a substantive visa was due to factors beyond their control, that there were compelling reasons for granting the visa, and that the applicant had complied substantially with previous visa conditions.

The Tribunal found that the applicant satisfied criterion 3001 as the application was lodged within 28 days of their last substantive visa expiring. Criterion 3003 was found not to apply to the applicant. However, regarding criterion 3004, the Tribunal was not satisfied that the applicant's failure to hold a substantive visa was due to factors beyond their control, accepting the applicant's explanation of forgetting the expiry date but not finding it to be a factor beyond his control, nor was his illness considered sufficiently serious to meet this threshold. Furthermore, the Tribunal did not find compelling reasons for granting the visa, dismissing the applicant's stated intention of maintaining a favourable visa history as not compelling, especially given the applicant had remained in Australia for over 14 months since lodging the application.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa. The Tribunal noted that the applicant was a credible witness who appeared to have received poor advice and suggested that the applicant could depart Australia and apply for a visa offshore, where his otherwise compliant visa history might be given weight in a future application.