Zhang (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, made by Ms Zhang. The application was made after her last substantive visa had ceased. The primary dispute revolved around whether Ms Zhang met the criteria under Schedule 3 of the Migration Regulations 1994, specifically clause 600.223(2)(b), which requires an applicant who does not hold a substantive visa at the time of application to satisfy Schedule 3 criteria 3001, 3003, 3004, and 3005. The decision was made by Senior Member Jennifer Cripps Watts of the Tribunal.

The legal issues before the Tribunal were whether Ms Zhang satisfied the Schedule 3 criteria, particularly Public Interest Criterion 3004, given that she did not hold a substantive visa when she applied. This involved determining if the delay in processing her waiver request for condition 8503 was a factor beyond her control, if there were compelling reasons for granting the visa, and if she had complied substantially with the conditions of her previous visas. The Tribunal also had to consider whether her last substantive visa was subject to a condition that would prevent her from being granted a further visa while remaining in Australia.

The Tribunal found that Ms Zhang had made reasonable attempts to address the waiver of condition 8503, including multiple calls to the Department and providing additional documentary and oral evidence at the hearing. It was satisfied that the delay in processing the waiver request and its subsequent granting were factors beyond her control. Furthermore, the Tribunal accepted that there were compelling reasons for granting the visa, including her support for her son and daughter-in-law's young family and the fact that she was awaiting the processing of a parent visa application. The Tribunal was satisfied that Ms Zhang met the requirements of Schedule 3 criterion 3004(h) and, consequently, clause 600.223(2) of Schedule 2 to the Regulations.

Accordingly, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, with a direction that Ms Zhang meets the requirements of Public Interest Criterion 3004 for the purposes of clause 600.223(2) of Schedule 2 to the Regulations.