McClay (Migration)

This matter concerned an application for a Visitor (Class FA) visa by two United Kingdom citizens, born in 1936 and 1939 respectively. The applicants did not hold a substantive visa at the time of their application. The dispute before the Tribunal was whether the applicants satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005, as required by clause 600.223 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicants met the Schedule 3 criteria, particularly in light of their circumstances, which included flight cancellations due to the COVID-19 pandemic and family mental health issues necessitating medical advice against solo travel. The core legal issue revolved around whether these circumstances constituted factors beyond the applicants' control and whether there were compelling reasons for granting the visa, as stipulated in criterion 3004.

The Tribunal found that the applicants satisfied criterion 3001 as their visa applications were lodged within 28 days of their last substantive visa ceasing. Criterion 3003 was found not to apply to the applicants. Regarding criterion 3004, the Tribunal considered that the applicants' inability to secure a substantive visa was due to factors beyond their control, such as the pandemic-related flight cancellations and the medical advice regarding travel. The Tribunal concluded that there were compelling reasons for granting the visa and that the applicants had complied substantially with the conditions of their previous visas.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicants met the criteria under clause 600.223 of Schedule 2 to the Regulations. This indicated that while the Schedule 3 criteria were a significant hurdle, the Tribunal found sufficient grounds to allow further consideration of the visa application.