Zhao (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600, made by Ms Zhao. Ms Zhao's last substantive visa expired on 6 September 2022, and she lodged her application for the subclass 600 visa on 8 September 2022, meaning she was not the holder of a substantive visa at the time of application. The Department had refused her application on the basis that she failed to satisfy Schedule 3, criterion 3004.

The primary legal issue before the Tribunal was whether Ms Zhao met the requirements of Schedule 3, criterion 3004, specifically subclauses (c) and (d). Criterion 3004(c) requires that the applicant not be the holder of a substantive visa due to factors beyond their control, while criterion 3004(d) requires that there be compelling reasons for granting the visa. The Tribunal was tasked with determining if the circumstances surrounding Ms Zhao's failure to apply for a further visa while holding a substantive visa, and the reasons for her continued presence in Australia, met these criteria.

The Tribunal reasoned that the applicant's circumstances, as explained by her sponsor (her son), constituted factors beyond her control. These included the sponsor's wife being in COVID quarantine in China, making communication difficult and contributing to the delay in lodging the application. Furthermore, the applicant's husband's hernia condition, which had been postponed for surgery due to the pandemic, required her care. The Tribunal also considered the compelling reasons for granting the visa, noting the applicant's role in caring for her husband and two grandchildren, and her stated intention not to overstay given other family members in China. The Tribunal concluded that Ms Zhao met criterion 3004 in its entirety.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa, subclass 600, for reconsideration. The Tribunal directed that Ms Zhao be considered to meet Public Interest Criterion 3004 for the purposes of clause 600.223(2) of Schedule 2 to the Regulations.