Singh (Migration)

The applicant, an Indian citizen, sought review of a decision to refuse him a Visitor (Class FA) visa. The applicant had applied for the visa while in Australia after his previous substantive visa had ceased. His family, including his daughter who is an Australian citizen, resided in Australia. The applicant contended that his inability to depart Australia and his subsequent overstay were due to factors beyond his control, specifically the COVID-19 pandemic and his daughter's ill health requiring surgery.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3004 of Schedule 3 of the Migration Regulations 1994. This criterion requires the Minister to be satisfied that the applicant is not the holder of 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 visa conditions. The applicant had met criterion 3001, which requires an application to be made within 28 days of the last substantive visa ceasing.

The Tribunal considered the applicant's submissions regarding the COVID-19 pandemic and his daughter's surgery. While acknowledging the applicant's stated reasons for remaining in Australia, the Tribunal found that the applicant had not provided sufficient evidence to satisfy the requirement that he was not the holder of a substantive visa because of factors beyond his control. Specifically, the Tribunal noted that the applicant had advance notice of his daughter's surgery and the possibility of seeking assistance with his visa application. The Tribunal concluded that it was not satisfied that the applicant met the requirements of criterion 3004.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa.