Xu (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's previous visa expired on 1 February 2021, and the application under review was lodged on 4 February 2021, with a bridging C visa subsequently granted. The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as mandated by cl 600.223(2) of the Migration Regulations 1994.

The Tribunal considered each Schedule 3 criterion. Criterion 3001 was satisfied as the application was lodged within 28 days of the applicant's last substantive visa expiring. Criterion 3003 was found not to apply to the applicant. However, the Tribunal found that the applicant did not satisfy criterion 3004. This criterion requires the Tribunal to be satisfied that the applicant is not the holder of 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 and bridging visa. Crucially, the applicant also needed to demonstrate they would have been entitled to the visa if they had applied on the day they last held a substantive visa. The Tribunal concluded that the applicant failed to satisfy the requirements of criterion 3004.

As the applicant did not satisfy the applicable Schedule 3 criteria, the Tribunal affirmed the decision not to grant the Visitor (Class FA) visa.