De Leon (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600 (Visitor) in the tourist stream, made by Ms. De Leon. Ms. De Leon applied for the visa while she was in Australia and did not hold a substantive visa, having last held a Temporary Skill Shortage visa (subclass 482) which expired on 29 August 2020. The application was lodged on 21 September 2020.

The primary legal issue before the Tribunal was whether Ms. De Leon satisfied Schedule 3 criterion 3004, as required by clause 600.223 of the Migration Regulations 1994, given she did not hold a substantive visa at the time of her application. This criterion requires the Minister to be satisfied that the applicant is not holding a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with visa conditions.

The Tribunal reasoned that Ms. De Leon's inability to secure employment during the COVID-19 pandemic and her ineligibility for a subclass 408 visa were factors beyond her control. It found compelling reasons to grant a short-term Visitor visa to allow her to explore study or work options in areas of skilled shortage. The Tribunal concluded that Ms. De Leon met criterion 3004 for the purposes of clause 600.223.

Consequently, the Tribunal remitted the application for reconsideration with a direction that Ms. De Leon meets criterion 3004.