Uppala (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Visitor (Class FA) visa (Subclass 600). The applicant did not hold a substantive visa at the time of application and was therefore subject to Schedule 3 criteria. The central issue was whether the applicant satisfied these criteria, specifically criteria 3001, 3003, 3004, and 3005, as required by clause 600.223 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the Schedule 3 criteria, which are mandatory for applicants who do not hold a substantive visa at the time of their application. This involved assessing whether the application was lodged within 28 days of the applicant's last substantive visa ceasing, whether criterion 3003 applied, and crucially, whether criterion 3004 was satisfied. Criterion 3004 necessitates that the applicant's failure to hold a substantive visa was due to factors beyond their control, that there were compelling reasons for granting the visa, and that the applicant had substantially complied with visa conditions.

The Tribunal found that the applicant satisfied criterion 3001 as the application was lodged within 28 days of their last substantive visa (a Subclass 500 student visa) ceasing. Criterion 3003 was deemed not applicable. However, regarding criterion 3004, the Tribunal determined that the applicant's failure to hold a substantive visa was solely due to a mistaken belief about their visa's expiry date. While the COVID-19 pandemic was acknowledged as a factor influencing the applicant's desire to remain in Australia, it did not present an impediment to lodging the visa application earlier. The Tribunal concluded that the applicant's mistaken belief was within their personal control and responsibility, and therefore, the failure to hold a substantive visa was not due to factors beyond their control. Consequently, the applicant did not satisfy criterion 3004, and as all Schedule 3 criteria must be met, the Tribunal did not need to consider criterion 3005.

The Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa, as the applicant failed to satisfy the applicable Schedule 3 criteria for the grant of the visa.