Pechova (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), made by Ms Pechova. The applicant was in Australia at the time of her application on 6 April 2020, but did not hold a substantive visa, her last substantive visa having expired on 17 March 2020. The dispute before the Tribunal was whether the applicant met the requirements of clause 600.223 of Schedule 2 to the Migration Regulations 1994, specifically clause 600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria.

The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, particularly Public Interest Criterion 3004. This criterion involves several sub-requirements, including whether the applicant was without a substantive visa due to factors beyond her control, whether there were compelling reasons for granting the visa, and whether the applicant had substantially complied with visa conditions and intended to comply with the conditions of the visa being sought. The Tribunal also had to consider whether the applicant would have been eligible for the visa if she had applied on the day she last held a substantive visa.

The Tribunal found that the applicant was not the holder of a substantive visa because of factors beyond her control, noting the context of the COVID-19 pandemic, international border closures, and flight cancellations. It was satisfied that there were compelling reasons for granting the visa and that the applicant had complied substantially with the conditions of her previous visas and intended to comply with the conditions of the Visitor visa. Consequently, the Tribunal concluded that the applicant met the requirements of clause 600.223.

The Tribunal remitted the application for reconsideration, directing that the applicant met Public Interest Criterion 3004 for the purposes of clause 600.223(2) of Schedule 2 to the Regulations.