Chanthabounheuang (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, made by the applicant, Chanthabounheuang. The applicant did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as stipulated by regulation 600.223(2) of the Migration Regulations 1994.

The Tribunal considered each of the Schedule 3 criteria. Criterion 3001 was satisfied as the application was lodged within 28 days of the applicant's last substantive visa ceasing. Criterion 3003 was found not to apply to the applicant. The Tribunal's primary focus was on criterion 3004, which requires the applicant to demonstrate that their inability to hold 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 the conditions of their previous visas. The Tribunal also 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, and that they intended to comply with the visa conditions.

The Tribunal concluded that the applicant met criterion 3001 and that criterion 3003 did not apply. While the applicant's circumstances, including the impact of COVID-19 border closures, suggested factors beyond their control and compelling reasons for the visa grant, the Tribunal did not make a final determination on criterion 3004. Instead, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under regulation 600.223 of Schedule 2 to the Regulations.