Mahire (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), made by an applicant who was residing in India at the time of the Tribunal's decision. The dispute arose because the applicant did not hold a substantive visa at the time of lodging her application, thus triggering the application of Schedule 3 criteria. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 criteria 3004, as mandated by sub-regulation 600.223(2)(b) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant could demonstrate that her failure to hold a substantive visa was due to factors beyond her control and if there were compelling reasons for the grant of the visa.

The Tribunal considered the applicant's explanation that she mistakenly believed her application, lodged after her previous substantive visa had expired, was a joint application with her spouse's subsequent visa application. While the Tribunal was satisfied that there were compelling reasons for the grant of the visa, it was not satisfied that the applicant had demonstrated that factors beyond her control prevented her from lodging her application while holding a substantive visa. Consequently, as the applicant failed to satisfy all applicable criteria, the Tribunal affirmed the decision not to grant the visa.