Pan (Migration)

This matter concerned an appeal by a visa applicant against a decision of the Department of Home Affairs regarding an application for a Subclass 600 (Visitor) visa. The applicant had applied for the visa on 7 July 2020, and at the time of application, did not hold a substantive visa. The core of the dispute revolved around whether the applicant met the requirements of cl.600.223 of the Migration Regulations 1994, specifically concerning the criteria for applicants who do not hold a substantive visa at the time of application.

The legal issues before the Tribunal were whether the applicant satisfied the criteria set out in cl.600.223(2) of the Regulations. This involved determining if the applicant's last substantive visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, and crucially, whether the applicant satisfied Schedule 3 criteria 3001, 3003, 3004, and 3005. The applicant’s evidence suggested a delay in processing the visa application payment via Bpay, which was a factor beyond his control.

The Tribunal accepted the applicant's evidence that he had paid the visa application fee using Bpay, but that there was a delay in the processing of this payment. It was also accepted that the applicant subsequently made the payment once he became aware of the error. In light of these findings, the Tribunal was satisfied that factors outside the applicant's control prevented him from lodging his application whilst holding a substantive visa. Furthermore, the Tribunal found compelling reasons for the grant of the visa and was satisfied that the applicant had complied with Criterion 3004. Consequently, the Tribunal found that the applicant satisfied cl.600.223 and was eligible for the grant of the visa.

The Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the criteria specified in cl.600.223 of Schedule 2 to the Regulations.