Yu (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Visitor) tourist stream, by an applicant who did not hold a substantive visa at the time of application. The Tribunal was required to determine whether the applicant met the requirements of clause 600.223 of the Migration Regulations 1994, specifically Schedule 3 criteria 3001, 3003, 3004, and 3005, given that the applicant was in Australia and did not hold a substantive visa when lodging the application.

The central legal issue was whether the applicant satisfied the criteria under Schedule 3, particularly criterion 3004, which 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. The applicant's last substantive visa expired on 4 March 2021, and the application for the subclass 600 visa was made on 22 March 2021.

The Tribunal found that the applicant did not satisfy the requirements of criterion 3004. The applicant's submission that a mistake regarding the expiry date of their previous visa constituted a factor beyond their control was not accepted. The Tribunal noted that the applicant had been requested to address the delay in their application and provide reasons for any factors outside their control preventing timely application, and compelling reasons for the visa grant. Ultimately, the Tribunal affirmed the decision not to grant the visa as the applicant failed to meet the applicable criteria.