Wang (Migration)

The Administrative Appeals Tribunal considered an appeal by Ms Wang concerning a decision to refuse her application for a Visitor (Class FA) visa, Subclass 600. The applicant had applied for the visa while in Australia and did not hold a substantive visa at the time of application. The core of the dispute revolved around whether the applicant met the criteria set out in clause 600.223 of the Migration Regulations 1994, particularly in light of the COVID-19 pandemic and its impact on her circumstances.

The Tribunal was required to determine if Ms Wang satisfied clause 600.223(2), which stipulates that if an applicant is in Australia and does not hold a substantive visa, their last substantive visa must not have been a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, and they must satisfy Schedule 3 criteria 3001, 3003, 3004, and 3005. The Tribunal also had to consider the impact of the pandemic-related travel restrictions and the applicant's personal circumstances, including family bereavement and caring responsibilities, on her ability to lodge the application prior to her previous visa's expiry.

The Tribunal accepted evidence that Ms Wang had limited English proficiency and relied on her daughter for assistance with her visa application. It was found that her daughter was in China when the applicant's visa expired and faced difficulties returning to Australia due to COVID-19 lockdowns and travel restrictions. The Tribunal also accepted that a misunderstanding regarding the previous visa's expiry date occurred, and that the death of the applicant's mother in China in November 2021 was a significant factor in the delayed application. Furthermore, the Tribunal acknowledged that Ms Wang was currently caring for her granddaughter, who attends secondary school in Australia. Based on these findings, the Tribunal concluded that Ms Wang satisfied clause 600.223.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa, Subclass 600, for reconsideration with a direction that the applicant meets the criteria specified in clause 600.223 of Schedule 2 to the Regulations.