Sukhjinder Kaur (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), made by Sukhjinder Kaur. The applicant had arrived in Australia on a Visitor visa which expired on 19 March 2023. She lodged her application for the subclass 600 visa on 22 March 2023, at which time she did not hold a substantive visa. The delegate refused the visa application, finding that the applicant had not demonstrated that factors beyond her control prevented her from lodging the application whilst holding a substantive visa, nor that there were compelling reasons for granting the visa. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria under clause 600.223 of Schedule 2 to the Migration Regulations 1994 (Cth), specifically concerning Schedule 3 criteria 3001, 3003, 3004, and 3005, given she did not hold a substantive visa at the time of application. This required the Tribunal to determine if the applicant's failure to hold a substantive visa was due to factors beyond her control and if there were compelling reasons for granting the visa, as stipulated in Schedule 3.

The Tribunal found that the applicant's passport was stolen from her son's home on 25 February 2023, which prevented her from returning to India by her scheduled departure date of 11 March 2023. Although the passport was recovered by police on 22 June 2023, this was after her substantive visa had expired and she had become a person without a substantive visa. The Tribunal accepted that the theft of her passport and the subsequent delay in its recovery constituted factors beyond her control that prevented her from lodging a further visa application while holding a substantive visa. The Tribunal also considered the stress and predicament caused by her inability to travel and the potential negative impact on her future travel to Australia, finding these to be compelling reasons for the grant of the visa.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration. The Tribunal directed that the applicant be taken to meet the relevant criteria under clause 600.223 of Schedule 2 to the Regulations, including the Schedule 3 criteria, based on the evidence presented regarding the circumstances of her passport theft and recovery.