Norton (Migration)

The Administrative Appeals Tribunal considered an application by an individual seeking a Visitor (Class FA) visa, Subclass 600 (Visitor) in the Tourist stream. The applicant was in Australia at the time of her application but did not hold a substantive visa. The primary dispute concerned whether the applicant met the requirements of Schedule 3 criteria, specifically criterion 3004, which applies when an applicant has ceased to hold a substantive visa.

The Tribunal was required to determine if the applicant satisfied the criteria under clause 600.223(2)(b) of the Migration Regulations 1994, which necessitates meeting Schedule 3 criteria 3001, 3003, 3004, and 3005. While the applicant met criteria 3001, 3003, and 3005, the delegate had found she did not satisfy criterion 3004. This criterion requires the Minister to be satisfied that the applicant is not a holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, that they have substantially complied with previous visa conditions, and that they intend to comply with future conditions.

The Tribunal reasoned that the delegate erred in not being satisfied that the applicant's failure to hold a substantive visa was due to factors beyond her control. The applicant contended that her daughter's medical episodes prevented her from lodging her visa application in a timely manner, constituting events outside her control. The Tribunal found that the applicant had substantially complied with the conditions of her previous visa and intended to comply with any future conditions. Given these findings, the Tribunal concluded that the applicant met the requirements of clause 600.223(2)(b).

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the relevant criteria for a Subclass 600 visa.