Singh (Migration)

The applicant, a citizen of India, applied for a subclass 600 Visitor visa while in Australia. The Department Delegate refused the application, finding that the applicant did not hold a substantive visa at the time of application and that there were no compelling reasons for granting the visa, nor factors beyond the applicant's control that prevented him from lodging a valid application. The applicant sought review of this decision by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied Schedule 3 criterion 3004, which is a requirement for applicants who do not hold a substantive visa at the time of application. This criterion requires the Tribunal to be satisfied that the applicant is not holding 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 the conditions of their previous visas. The Tribunal also had to consider whether the applicant would have been entitled to the visa if they had applied while holding a substantive visa.

The Tribunal found that the applicant's failure to hold a substantive visa was due to factors beyond his control, specifically contracting COVID-19 and experiencing symptoms that required isolation, which delayed his ability to seek timely advice and lodge his application. The Tribunal also considered the applicant's intention to spend Christmas and New Year with his brother in Australia as a compelling reason for granting the visa. Furthermore, the Tribunal was satisfied that the applicant had substantially complied with the conditions of his previous visa.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration. The Tribunal directed that the applicant met Criterion 3004 of Schedule 3 for the purpose of clause 600.223(2) of Schedule 2 to the Migration Regulations 1994.