Bell (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by a 72-year-old applicant who did not hold a substantive visa at the time of application. The applicant and his wife, who also applied for review of her visa refusal, were visiting their daughter and grandchildren in Adelaide when the COVID-19 pandemic impacted travel and border restrictions. The central dispute was whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, which are relevant when an applicant does not hold a substantive visa at the time of application. The decision was made by Senior Member Louise Nicholls.

The legal issues before the Tribunal were whether the applicant met the requirements of Schedule 3 criteria 3001, 3003, 3004, and 3005. Criterion 3001 required the application to be lodged within 28 days of the relevant day, which the Tribunal found was satisfied. Criterion 3003 was found not to apply to the applicant. The primary focus of the Tribunal's consideration was criterion 3004, which requires the applicant to demonstrate that their lack of a substantive visa was due to factors beyond their control, that there were compelling reasons for granting the visa, and that they had complied substantially with visa conditions. Additionally, the Tribunal had to be satisfied that the applicant would have been entitled to the visa if they had applied on the day they last held a substantive visa, or if they had entered Australia lawfully.

The Tribunal reasoned that the applicant satisfied criterion 3001 as his visa application was lodged within 28 days of his last substantive visa expiring. It also determined that criterion 3003 was not applicable to the applicant's circumstances. While the full assessment of criterion 3004 was not detailed in the provided text, the Tribunal's ultimate decision to remit the matter suggests that it found sufficient grounds to reconsider the application, particularly in light of the compelling reasons presented, such as the applicant's age and the impact of the COVID-19 pandemic. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister.