Bell (Migration)

This case concerned an application for a Visitor (Class FA) visa, subclass 600, by a 72-year-old citizen of the United Kingdom. The applicant, who regularly visited Australia with her husband to see their daughter and grandchildren, had arrived in Australia on 30 October 2019. Due to the onset of the COVID-19 pandemic and associated border restrictions, her intended six-month stay was extended. The primary dispute before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as she did not hold a substantive visa at the time of her application.

The legal issues before the Tribunal were whether the applicant met the requirements of Schedule 3 criteria 3001, 3003, and 3004. 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. Criterion 3004 required the Tribunal to be satisfied that the applicant was not the holder of a substantive visa due to factors beyond her control, that there were compelling reasons for granting the visa, and that she had complied substantially with the conditions of her previous visas.

The Tribunal reasoned that the applicant satisfied criterion 3001 as her visa application was lodged within 28 days of her last substantive visa expiring. It also determined that criterion 3003 was not applicable to her circumstances. While the applicant did not hold a substantive visa at the time of application, the Tribunal found that the applicant had provided evidence consistent with satisfying criterion 3004, including that her inability to hold a substantive visa was due to factors beyond her control, such as the COVID-19 pandemic, and that there were compelling reasons for granting the visa.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met clause 600.223 of Schedule 2 to the Regulations and the specified Schedule 3 criteria, allowing for further consideration of the remaining criteria for the Subclass 600 visa.