Cruz (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by a 63-year-old national of the Philippines. The applicant had held a series of Visitor visas since 2017, with her last substantive visa ceasing on 5 March 2021. She applied for an extension on 24 March 2021, seeking to remain in Australia until 8 April 2021, citing concerns about COVID-19 affecting flight schedules and posing a health risk due to her age. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant satisfied the Schedule 3 criteria as stipulated by clause 600.223(2) of the Migration Regulations 1994, given she did not hold a substantive visa at the time of her application.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 criteria 3001, 3003, 3004, and 3005. Specifically, the Tribunal had to assess if the application was lodged within 28 days of the relevant day (criterion 3001), whether criterion 3003 applied and was satisfied, and if the applicant met the conditions under criterion 3004, which requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with visa conditions. The Tribunal also considered criterion 3005, which relates to whether a visa had previously been granted based on satisfaction of similar criteria.

The Tribunal found that the applicant satisfied criterion 3001 as her application was lodged within 28 days of her last substantive visa ceasing. Criterion 3003 was deemed not applicable to the applicant's circumstances. However, the Tribunal concluded that the applicant did not satisfy criterion 3004. While the applicant's reasons for remaining in Australia, related to COVID-19 and her age, might suggest factors beyond her control, the Tribunal did not find that these circumstances, or the applicant's compliance with visa conditions, met the threshold for "compelling reasons" required by criterion 3004. Consequently, as the applicant failed to satisfy the applicable Schedule 3 criteria, the Tribunal affirmed the decision not to grant the visa.