Suresh Kumar (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), by an applicant who did not hold a substantive visa at the time of application. The central dispute before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, which are relevant when an applicant does not hold a substantive visa at the time of application. The applicant, an Indian national, had been visiting his sons in Australia and had been granted several visitor visas, the last of which expired on 9 August 2022. His application for a further visitor visa was lodged on 19 August 2022.

The Tribunal was required to determine if the applicant met the requirements of Schedule 3 criteria 3001, 3003, and 3004. Criterion 3001 requires the application to be lodged within 28 days of the relevant day, which was satisfied as the application was lodged within this timeframe. Criterion 3003 applies to specific circumstances involving applicants who have not held a substantive visa since 1 September 1994 and were either an illegal entrant or held an entry permit not valid beyond 31 August 1994 on that date; the Tribunal found this criterion did not apply to the applicant. Criterion 3004 applies to applicants who ceased to hold a substantive visa on or after 1 September 1994, or entered Australia unlawfully and have not subsequently been granted a substantive visa, and requires satisfaction of several sub-criteria, including 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 would have been entitled to the visa if they had applied on the day they last held a substantive visa.

The Tribunal's reasoning focused on the applicant's failure to satisfy the requirements of criterion 3004. While the applicant met criterion 3001 and criterion 3003 was not applicable, the Tribunal found that the applicant had not provided sufficient evidence to satisfy the conditions of criterion 3004. Specifically, the Tribunal was not satisfied that the applicant was not the holder of a substantive visa due to factors beyond his control, nor that there were compelling reasons for granting the visa, nor that he would have been entitled to the visa if he had applied on the day he last held a substantive visa. The Tribunal noted the applicant's stated health issues due to contracting COVID-19 and continuing health issues, but these were not deemed sufficient to meet the stringent requirements of criterion 3004.

Consequently, as the applicant did not satisfy the applicable Schedule 3 criteria, the Tribunal affirmed the decision not to grant the Visitor (Class FA) visa.