Trivedi (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600, made by an applicant who did not hold a substantive visa at the time of application. The applicant and her husband, citizens of India, were unable to return to their home country due to international border closures in both Australia and India, a situation arising from COVID-19.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as required by clause 600.223(2) of the Migration Regulations 1994 for applicants in Australia without a substantive visa. The Tribunal was required to determine if the applicant met the timeframes for lodging the application, if certain historical visa conditions applied, and if the applicant's inability to hold a substantive visa was due to factors beyond her control, alongside other compelling reasons and compliance with visa conditions.

The Tribunal found that the applicant satisfied criterion 3001, having lodged her application within 28 days of her last substantive visa ceasing. Criterion 3003 was deemed not applicable to the applicant. Regarding criterion 3004, the Tribunal noted that it applies when an applicant ceases to hold a substantive visa due to factors beyond their control and there are compelling reasons for granting the visa. While the applicant's inability to depart Australia due to COVID-19 border closures was acknowledged as a factor beyond her control, the Tribunal did not make a final determination on whether all aspects of criterion 3004 and criterion 3005 were met.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met clause 600.223 of Schedule 2 to the Regulations. This means the Minister is to consider the remaining criteria for the Subclass 600 visa.