MacLeod (Migration)

This case concerned an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), by an applicant who was in Australia but did not hold a substantive visa at the time of application. The applicant's previous visa had ceased on 16 March 2020, and the application for the Visitor visa was lodged on 6 April 2020. The matter came before Senior Member Louise Nicholls of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the requirements of criterion 3001 and criterion 3004 of Schedule 3 to the Migration Regulations 1994. Criterion 3001 required the application to be lodged within 28 days of the applicant last holding a substantive visa, which the applicant satisfied. The central dispute revolved around criterion 3004, which required the Minister to be satisfied that the applicant was not holding a substantive visa due to factors beyond their control, that there were compelling reasons for granting the visa, that the applicant had complied with visa conditions, and that they would have been eligible for the visa if they had applied before their last substantive visa ceased.

The Tribunal considered the applicant's circumstances, including his intention to depart Australia for New Zealand on 15 March 2020, prior to his visa expiring, as evidenced by a flight booking. It was noted that the applicant received conflicting advice from the Department regarding his visa options when he attempted to seek clarification due to the emerging COVID-19 pandemic and potential travel restrictions. The Tribunal acknowledged the applicant's extensive volunteer work in local communities, assisting with permaculture and sustainable gardens, as a compelling reason for granting the visa. However, the Tribunal ultimately found that it was not satisfied that the applicant met all the requirements of criterion 3004, specifically regarding the reasons for not holding a substantive visa being beyond his control and the potential eligibility for the visa if applied for earlier.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa, finding that the applicant did not satisfy the requirements of clause 600.223 of the Migration Regulations.