Zhang (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse a Visitor (Class FA) Subclass 600 visa to the applicant, a 71-year-old female citizen of China. The applicant was in Australia at the time of her application and did not hold a substantive visa. The delegate's refusal was based on the applicant failing to satisfy Public Interest Criterion (PIC) 3004(c) of Schedule 3 of the Migration Regulations 1994, which in turn led to her failing to satisfy clause 600.223 of Schedule 2 of the Regulations. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically PIC 3004(c).

The central legal issue before the Tribunal was whether the applicant had demonstrated that she did not hold a substantive visa due to factors beyond her control, as required by PIC 3004(c). This criterion also necessitates that there be compelling reasons for granting the visa. The applicant argued that the impact of the COVID-19 pandemic and family illness constituted factors beyond her control that prevented her from obtaining a substantive visa.

The Tribunal considered the applicant's submissions and the evidence presented, including oral evidence from her daughter. However, the Tribunal was not satisfied that the applicant had met the threshold for PIC 3004(c). While acknowledging the difficulties presented by the pandemic, the Tribunal found that the applicant had not sufficiently demonstrated that her failure to hold a substantive visa was solely attributable to factors beyond her control. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.