Xu (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream). The applicant, Ms. Xu, sought review of a decision not to grant her the visa. The central issue was whether Ms. Xu met the requirements of clause 600.223 of the Migration Regulations 1994, specifically concerning Schedule 3 criteria, as she did not hold a substantive visa at the time of her application.

The Tribunal was required to determine if Ms. Xu satisfied Schedule 3 criteria 3001, 3003, 3004, and 3005. Clause 600.223(2)(b) mandates that an applicant who does not hold a substantive visa at the time of application must satisfy these Schedule 3 criteria. A key component of this assessment was criterion 3004, which requires the Tribunal to be satisfied of several sub-points, including whether the applicant was not the holder of a substantive visa due to factors beyond her control, whether there were compelling reasons for granting the visa, and whether she had substantially complied with visa conditions.

The Tribunal found that Ms. Xu did not hold a substantive visa at the time of her application, as her Working Holiday visa had expired on 2 June 2020, and her application was made on 25 June 2020. While she satisfied clause 600.223(2)(a) because her last substantive visa was not a Subclass 403 visa, she failed to satisfy criterion 3004(c) of Schedule 3. The Tribunal was not satisfied that her failure to hold a substantive visa was due to factors beyond her control, noting her admission of being mistaken about her visa expiry date, and that she felt stressed and overwhelmed. Consequently, the Tribunal concluded that Ms. Xu did not meet the requirements of clause 600.223.

The Tribunal affirmed the decision not to grant Ms. Xu a Visitor (Class FA) visa.