Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Visitor (Class FA) visa, Tourist stream, who did not hold a substantive visa at the time of application. The primary issue was whether the applicant met Schedule 3 criterion 3004, which requires the Minister to be satisfied of factors beyond the applicant's control preventing the lodgement of the application while holding a substantive visa, and compelling reasons for granting the visa.

The Tribunal was required to determine if the applicant's failure to apply for the visa while holding a substantive visa was due to factors beyond his control and if there were compelling reasons for the grant of the visa. The applicant had mistakenly believed his previous Graduate Temporary visa expired later than it actually did, leading to his application being lodged after its expiry. He acknowledged his "carelessness" in this regard.

The Tribunal reasoned that the applicant's stated reasons for wanting to visit Australia, such as sightseeing and enjoying local hospitality, did not meet the ordinary dictionary meaning of "compelling," which implies reasons that cannot be refuted or resisted. The applicant's desire to have a valid visa for departure and to continue exploring Australia after an extended stay were also not considered compelling reasons. Consequently, the Tribunal found that the applicant did not satisfy Schedule 3 criterion 3004.

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