Nguyen (Migration)

The applicant, a 76-year-old Vietnamese citizen residing in Australia, sought review of a decision to refuse her application for a Visitor (Class FA) visa, Subclass 600. The applicant had arrived in Australia on 30 November 2019 and applied for a new Visitor visa on 8 December 2020, after her previous visa had expired on 30 November 2020. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically criterion 3004 of Schedule 3, given she did not hold a substantive visa at the time of her application.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3004, which requires the Minister to be satisfied that the applicant is not the holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with visa conditions. The applicant contended that COVID-19 travel restrictions and her son's forgetfulness regarding her visa expiry date were factors beyond her control that prevented her from re-applying in time.

The Tribunal found that while the applicant met criterion 3001, as her application was lodged within 28 days of her last substantive visa ceasing, she failed to satisfy criterion 3004. The Tribunal noted that the applicant's explanation for not re-applying in time, namely forgetting the expiry date and her son's forgetfulness, did not constitute factors beyond her control as contemplated by the regulations. The Tribunal concluded that the applicant had not demonstrated compelling reasons for the grant of the visa and had not substantially complied with the conditions of her previous visa, as she remained in Australia after its expiry without a further substantive visa.

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