MIGRATION REVIEW TRIBUNAL DECISIONS
Other Australian Visas
December 2008 - Visitor Visas
0800914
8 December 2008, Melbourne
Ms L Spieler, Member
TOURIST (CLASS TR) – SUBCLASS 676 (SHORT STAY) – CRITERION 3004 – CL.676.215 - The applicant applied for a Tourist (Class TR) visa on 6 February 2008. The application was rejected by a delegate of the Minister for Immigration and Citizenship on the basis that the applicant did not meet criterion 3003 of Schedule 3 to the Migration Regulations 1994 (the Regulations), as she did not hold a substantive visa at the time of application. Her previous subclass 573 visa expired on 9 January 2008. In her application, the applicant stated that she wished to extend her stay in order to attend her graduation ceremony and to apply as a dependent on her husband’s subclass 885 visa application. Her migration agent confirmed that she and her husband had instructed his firm to apply for a subclass 885 visas in the middle of 2007. However, due to handling errors within the firm, the application was not lodged on, or before, 9 January 2008. It was argued that the applicant’s failure to hold a substantive visa was due to factors beyond her control.
Held: Decision under review set aside
The Tribunal found that as the applicant’s last substantive visa was a subclass 573, she was subject to the requirements of criterion 3004, rather than 3003. In respect of criterion 3004(d) the Tribunal had to be satisfied that there were compelling reasons for granting the visa. The Tribunal considered that the applicant’s desire to attend her graduation ceremony and her wish to apply as a dependent on her husband’s application did not amount to compelling reasons for granting the visa. However, the Tribunal considered that the applicant had been studying with a view to lodging a skilled migration visa. While she was included in her spouse’s application for a subclass 885 visa, it may be that the applicant herself had a better chance of satisfying the requirements for the visa. The Tribunal thus considered that the applicant had been unable to lodge a subclass 885 visa in her own right as a primary applicant. In the circumstances, it considered she should be afforded the opportunity to make a visa application onshore in accordance with her original plans. The Tribunal was therefore satisfied that there were compelling grounds for the grant of the visa.
Precis, The MRT-RRT Monthlthy Decisions Bulletin, Migration Refugee Tribunal - Refugee Tribunal, 2 February 2009, copyright Commonwealth of Australia reproduced by permission.
