Cohen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Visitor (Class FA) visa, subclass 600. The applicant had applied for this visa on 30 September 2020, after his last substantive visa, a subclass 417 Working Holiday visa, had ceased on 7 September 2020. Consequently, the applicant was required to satisfy Schedule 3 criteria, including criterion 3004, which necessitates demonstrating that the failure to hold a substantive visa at the time of application was due to factors beyond his control and that there were compelling reasons for granting the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 criterion 3004. Specifically, the Tribunal had to determine if the applicant could establish that his lack of a substantive visa was caused by circumstances beyond his control and if there were compelling reasons to grant the Visitor visa. The Department had previously refused the application on the grounds that these conditions were not met.

The Tribunal's reasoning focused on the applicant's submissions regarding the impact of the COVID-19 pandemic. The applicant's migration agent argued that the Israeli government's strict lockdown imposed on 25 September 2020, and an offer of financial support from his employer in Sydney to study business locally, constituted factors beyond his control. These circumstances led him to withdraw an application for a second Working Holiday visa and instead apply for a Visitor visa, hoping to pursue studies in Australia. However, the Tribunal found that these factors did not satisfy the requirements of Schedule 3 criterion 3004, concluding that the applicant had not demonstrated that his inability to apply for the Visitor visa while holding a substantive visa was due to factors beyond his control, nor that there were compelling reasons for the visa grant.

Ultimately, the Tribunal affirmed the Department's decision not to grant the applicant a Visitor (Class FA) visa, subclass 600, as the applicant failed to meet the requirements of Schedule 3 criterion 3004.