Lin (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by an applicant who did not hold a substantive visa at the time of application. The dispute centred on whether the applicant met the additional criteria required under clause 600.223 of the Migration Regulations 1994. The Tribunal also addressed a procedural issue regarding the conduct of a hearing by teleconference during the COVID-19 pandemic, despite a request for postponement due to potential COVID-19 illness.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically 3001, 3004, and 3005, as required by clause 600.223(2)(b) of the Regulations. This clause applies when an applicant is in Australia and does not hold a substantive visa at the time of their application. Schedule 3 criterion 3004, in particular, requires the applicant to demonstrate that their failure to hold a substantive visa was due to factors beyond their control and that there are compelling reasons for granting the visa.

The Tribunal reasoned that the applicant did not hold a substantive visa when applying for the Subclass 600 visa, as their previous visitor visa had expired. Consequently, the applicant was required to satisfy the Schedule 3 criteria. While the Tribunal found that criterion 3003 was not applicable and that the applicant satisfied criterion 3001, it determined that the applicant had failed to satisfy criterion 3004. This failure meant the applicant could not meet the requirements of clause 600.223(2)(b) and therefore could not be granted the visa. The Tribunal affirmed the delegate's decision to refuse the visa.