Nguyen (Migration)

This matter concerned an appeal by a 70-year-old Vietnamese citizen against the refusal of her subclass 600 Visitor (Tourist) visa. The applicant had been in Australia since March 2020 and her last substantive visa expired on 6 December 2020, after which she remained in Australia unlawfully. She attempted to lodge a new visa application online on 5 December 2020, the day before her previous visa expired, but due to using BPAY for payment, the lodgement date was recorded as 9 December 2020, after her visa had expired. A valid application was subsequently lodged on 21 December 2020. The delegate of the Minister refused the application, finding that the applicant did not satisfy Schedule 3 criterion 3004, and therefore did not meet the requirements of clause 600.223.

The legal issues before the Tribunal were whether the applicant had demonstrated that there were factors beyond her control that prevented her from lodging a valid application while holding a substantive visa, and whether there were compelling reasons for granting the visa. The applicant sought to extend her stay due to the COVID-19 pandemic and to visit family and support the Australian tourism industry. She provided evidence of an attempted online lodgement on 5 December 2020, a BPAY payment made on that date, and a subsequent technical issue with the Department's system that resulted in the application being recorded as lodged on 9 December 2020. She also submitted that she had family in Australia, was financially independent, and had a history of being a responsible visitor.

The Tribunal considered the applicant's submission that the technical issue with the BPAY payment was a factor beyond her control. However, it found that the applicant had not demonstrated that this issue prevented her from lodging a valid application while she still held a substantive visa. The Tribunal noted that the BPAY payment was made on 5 December 2020, but the application was not considered lodged until 9 December 2020, after her substantive visa had ceased. Furthermore, the Tribunal found that while the applicant had family and planned tourism activities in Australia, these reasons, in the context of the COVID-19 pandemic, did not constitute compelling reasons for granting the visa, particularly given she was seeking to remain in Australia unlawfully.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa. The applicant failed to satisfy Schedule 3 criterion 3004, meaning she did not meet the requirements of clause 600.223 for the grant of a Visitor (Tourist) visa.