Mile Thulasi Das (Migration)

The Administrative Appeals Tribunal considered an application by Mr Bharath Mile Thulasi Das for a Visitor (Class FA) visa, Subclass 600 (Tourist stream). Mr Das was in Australia at the time of his application but did not hold a substantive visa. The primary dispute concerned whether Mr Das met the requirements of clause 600.223 of the Migration Regulations 1994, specifically Schedule 3 criteria, which apply when an applicant does not hold a substantive visa at the time of application.

The Tribunal was required to determine whether Mr Das satisfied Schedule 3 criteria, particularly criterion 3004. This criterion mandates that the Minister be satisfied that the applicant's failure to hold a substantive visa was due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with the conditions of their last substantive visa and any subsequent bridging visa. Additionally, the Minister must be satisfied that the applicant would have been granted the visa if they had applied when last holding a substantive visa, or would have satisfied the criteria upon unlawful entry, and that they intend to comply with the visa conditions.

The Tribunal reasoned that Mr Das's failure to hold a substantive visa was attributable to circumstances beyond his control, namely the COVID-19 pandemic and associated travel restrictions preventing his return to India. The Tribunal accepted that the pandemic's early stages created uncertainty, and Mr Das sought advice from a migration agent, leading to his application for a Visitor visa. Evidence of illness around the time of his last substantive visa's expiry, which interrupted his ability to lodge the application, was also considered. Given these findings, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, directing that Mr Das meets the criteria under clause 600.223 of Schedule 2 to the Regulations.