Li (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Visitor), made by Ms Li. At the time of her application on 24 December 2021, Ms Li did not hold a substantive visa, her last having ceased on 18 December 2021. Consequently, pursuant to cl. 600.223(2)(b) of Schedule 2 to the Regulations, Ms Li was required to satisfy the criteria set out in Schedule 3, specifically criteria 3001, 3003, 3004, and 3005. The Tribunal was required to determine whether Ms Li met these criteria, particularly criterion 3004, which addresses circumstances where an applicant ceases to hold a substantive visa due to factors beyond their control.

The central legal issue was whether Ms Li's failure to hold a substantive visa at the time of her application was due to factors beyond her control, as required by criterion 3004(c). This criterion also necessitates compelling reasons for granting the visa, substantial compliance with previous visa conditions, and that the applicant would have satisfied the visa grant criteria had they applied on the day they last held a substantive visa. Ms Li's daughter, who managed the visa application and payment, explained that the application was submitted and paid for on 18 December 2021, but was not accepted by the Department until 24 December 2021, after an invalidity notification on 21 December. The delay was attributed to the use of BPAY for payment, which the Tax Invoice indicated was not suitable for urgent applications, and to unforeseen work commitments impacting the daughter's ability to finalise the application promptly.

The Tribunal found that while the daughter's work commitments were unplanned, they did not constitute factors beyond Ms Li's control in the context of criterion 3004(c). The Tax Invoice clearly warned that BPAY payments could cause delays and were not appropriate for urgent applications, a fact that Ms Li and her daughter were aware of. The Tribunal concluded that the failure to meet the deadline for a valid application was not attributable to circumstances outside of their control, and therefore, Ms Li did not satisfy criterion 3004.

Consequently, the Tribunal affirmed the decision under review.