Trivedi (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by an applicant who did not hold a substantive visa at the time of application. The applicant and their spouse, both Indian citizens, had been in Australia since May 2019 visiting their son and his family. Due to international border closures in both Australia and India resulting from the COVID-19 pandemic, they were unable to return home. The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, and 3004, as stipulated by clause 600.223(2) of the Migration Regulations 1994.

The Tribunal first considered criterion 3001, which requires the visa application to be lodged within 28 days of the "relevant day." The applicant's last substantive visa expired on 10 May 2020, and the application was lodged on 29 May 2020, thus satisfying this criterion. Criterion 3003 was found not to apply to the applicant as they had held substantive visas after 1 September 1994. The Tribunal then examined criterion 3004, which applies to applicants who ceased to hold a substantive visa or entered Australia unlawfully after 1 September 1994. This criterion requires the Tribunal to be satisfied that the applicant is without a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions of their previous visas.

The Tribunal concluded that the applicant satisfied criterion 3001 and that criterion 3003 did not apply. While the applicant did not hold a substantive visa at the time of application, the circumstances preventing their departure from Australia, namely the international border closures due to COVID-19, were considered factors beyond their control. The Tribunal found that the applicant met the requirements of clause 600.223 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the specified criteria for the Subclass 600 visa.