Lin (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600 (Visitor), tourist stream, made by an applicant who did not hold a substantive visa at the time of application. The applicant had lodged their application within 28 days after their last substantive visa expired. The delegate had refused the visa, finding that the applicant did not satisfy Schedule 3 criterion 3004.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 criterion 3004, which necessitates the Minister being satisfied that the applicant is not holding a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with visa conditions. Additionally, the Tribunal had to consider whether the applicant would have been entitled to the visa if they had applied on the day their last substantive visa expired.

The Tribunal reasoned that the applicant's previous student visa application being lodged one day out of time, coupled with COVID-19 restrictions, delays and misleading advice from a previous agent, and financial difficulties, constituted factors beyond the applicant's control. The Tribunal also found compelling reasons for granting the visa, noting the applicant's continued successful study and substantial completion of a higher education course, which involved significant financial investment. The Tribunal concluded that the applicant had substantially complied with the conditions of their previous visas and bridging visas.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets Schedule 3 criteria 3001 and 3004 for the purposes of clause 600.223(2) of Schedule 2 to the Regulations.