Koshy George (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Visitor) tourist stream, made by Koshy George. The applicant had applied for the visa after their last substantive visa had ceased. The primary dispute before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as required by clause 600.223 of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant met the requirements of Schedule 3 criteria 3001, 3003, 3004, and 3005. 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. The central issue revolved around criterion 3004, which requires the applicant to demonstrate that their failure 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 visa conditions.

The Tribunal reasoned that the applicant's last substantive visa ceased on 23 July 2021, and the current application was lodged on 20 August 2021, thus satisfying criterion 3001. While criterion 3003 was not applicable, the Tribunal considered the applicant's circumstances in relation to criterion 3004. The applicant, who is severely disabled, relied on their brother, whose family responsibilities and wife's work as a COVID nurse presented compelling reasons for the visa grant. The Tribunal noted the applicant's vulnerability and the impact of COVID-related travel restrictions.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be taken to meet the criteria for a Subclass 600 (Visitor) visa, specifically clause 600.223 of Schedule 2 to the Regulations, implying that the assessment of the Schedule 3 criteria, particularly 3004, warranted further consideration in favour of the applicant.