Rai (Migration)

This matter concerned an application for review of a delegate's decision to refuse Mrs Sushma Rai a Subclass 600 (Visitor) visa. Mrs Rai applied for the visa on 6 December 2022, one day after her previous substantive visa had expired. The delegate refused the visa on the basis that Mrs Rai did not hold a substantive visa at the time of her application and did not satisfy the Schedule 3 criteria, specifically criterion 3004, as required by clause 600.223 of Schedule 2 to the Migration Regulations 1994 (Cth). Mrs Rai's application was heard jointly with her daughter's application due to the similar issues involved.

The primary legal issue before the Tribunal was whether Mrs Rai met the requirements of clause 600.223 of the Migration Regulations. This clause stipulates that if an applicant is in Australia at the time of application and does not hold a substantive visa, they must satisfy Schedule 3 criteria, including criterion 3004. The Tribunal was required to determine if Mrs Rai, having applied for the visa after her previous substantive visa expired, met these Schedule 3 requirements.

The Tribunal found that Mrs Rai was in Australia when she lodged her application, a fact not in dispute. However, it was also clear that she did not hold a substantive visa at that time. Consequently, the Tribunal was required to assess whether she satisfied the Schedule 3 criteria. While the applicant argued that factors beyond her control, such as physical health issues and stress, prevented her from making timely appointments with a specialist, the Tribunal found that these conditions were not incapacitating and that minimal efforts were made to secure such appointments. Therefore, the Tribunal was not satisfied that Mrs Rai met the requirements of clause 600.223.

Accordingly, the Tribunal affirmed the delegate's decision to refuse to grant Mrs Rai the Visitor (Class FA) visa.