Wang (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, made by an applicant who was in Australia but did not hold a substantive visa at the time of application. The applicant’s last substantive visa, a Student (subclass 500) visa, had expired on 30 July 2020, and the application for the subclass 600 visa was lodged on 25 August 2020. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, particularly those in Schedule 3, which apply when an applicant does not hold a substantive visa at the time of application.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3004 of Schedule 3. This criterion requires the Minister to be satisfied that the applicant is not the holder of a substantive visa because of 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 applicant argued that their failure to maintain lawful status was due to an innocent mistake of forgetting the visa expiry date, and that subsequent actions to correct this were hindered by COVID-19 restrictions, including border closures, flight cancellations, and exorbitant travel costs.

The Tribunal considered the applicant's submissions and evidence, including their visa history which showed a pattern of holding various student visas and awareness of their expiry dates. While acknowledging the applicant's immediate action to apply for a new visa and the impact of COVID-19, the Tribunal found that the applicant had not demonstrated that their failure to hold a substantive visa was due to factors beyond their control. The Tribunal noted that the applicant had previously been aware of visa expiry dates and had a responsibility to maintain lawful status. Consequently, the Tribunal concluded that criterion 3004 was not met.

The Tribunal affirmed the delegate's decision, finding that the applicant did not satisfy the requirements of criterion 3004 of Schedule 3. Therefore, the application for the Visitor (Class FA) visa, subclass 600, was refused.