Sarabjeet Kaur (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), by Sarabjeet Kaur, a national of India. The applicant had been in Australia on a series of Visitor visas since October 2018, with her last substantive visa ceasing on 19 January 2021. She applied for the visa under review on 2 February 2021, seeking to remain in Australia to support her daughter. The Administrative Appeals Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as she did not hold a substantive visa at the time of her application.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 of the Migration Regulations 1994, which apply when an applicant is in Australia without a substantive visa at the time of application. The Tribunal considered criterion 3001, which requires the application to be lodged within 28 days of the relevant day, and found that the applicant satisfied this criterion as her application was lodged within 28 days of her last substantive visa ceasing. Criterion 3003 was found not to apply to the applicant's circumstances. The Tribunal also examined criterion 3004, which requires the applicant to demonstrate that her failure to hold a substantive visa was due to factors beyond her control, that there were compelling reasons for granting the visa, and that she had complied substantially with visa conditions.

In its reasoning, the Tribunal noted that while the applicant satisfied criterion 3001, she failed to satisfy criterion 3004. The Tribunal found that the applicant's reliance on her daughter for support did not constitute factors beyond her control in relation to her visa status. The Tribunal concluded that the responsibility for maintaining a lawful visa status rested with the applicant. Consequently, as the applicant did not satisfy the applicable criteria for the grant of a Subclass 600 visa, the Tribunal affirmed the decision not to grant the visa.