2103000 (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Visitor) (tourist stream), made by an applicant who was in Australia and did not hold a substantive visa at the time of application. The applicant had previously held a Student Guardian visa to accompany her daughter, but both visas expired. The application was heard by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria under clause 600.223 of Schedule 2 of the Migration Regulations 1994, specifically concerning Schedule 3 criteria, given that she applied after her last substantive visa had expired. This required the Tribunal to determine if the applicant met criteria 3001, 3003, 3004, and 3005 of Schedule 3.

The Tribunal found that the applicant satisfied criterion 3001 as her application was lodged within 28 days of her last substantive visa ceasing. It also determined that criterion 3003 did not apply. Regarding criterion 3004, the Tribunal was satisfied that there were compelling reasons for granting the visa, including the applicant's role as a guardian for her daughter, the impact of COVID-19 restrictions, and the daughter's educational progress. The Tribunal accepted that the applicant had complied with her visa conditions and intended to comply with future conditions. The Tribunal also found that the applicant would have been entitled to the visa if she had applied before her last substantive visa expired. Criterion 3005 was satisfied as there was no evidence of previous grants based on Schedule 3 criteria.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration by the Minister, with a direction that the applicant meets clause 600.223 of Schedule 2 of the Regulations.