Ma (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), by an applicant whose last substantive visa expired on 1 October 2021. The applicant lodged a further visa application on 8 December 2021, after her substantive visa had ceased. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3004, which applies when an applicant does not hold a substantive visa at the time of application.

The primary legal issue before the Tribunal was whether the applicant could demonstrate that her failure to hold a substantive visa was due to factors beyond her control, that there were compelling reasons for granting the visa, and that she had substantially complied with the conditions of her previous visas. Criterion 3004 also requires the Tribunal to be satisfied that the applicant would have been entitled to the visa if she had applied before her substantive visa expired, or would have satisfied the criteria upon her last lawful entry into Australia.

The Tribunal considered the applicant's submissions regarding delays caused by the COVID-19 pandemic, including flight cancellations and border closures, which had impacted her ability to depart Australia and lodge her application in a timely manner. The applicant also submitted that her husband's medical condition in September and October 2021, and a lost paper application for a further visitor visa, contributed to the delay. However, the Tribunal found that these circumstances did not satisfy the requirements of Schedule 3 criterion 3004. The Tribunal concluded that the applicant had not met the necessary criteria for the grant of the visa.

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