Rokobaro (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, reviewed by Wendy Banfield of the Tribunal. The applicant did not hold a substantive visa at the time of application and sought to satisfy the Schedule 3 criteria as required by regulation 600.223(2) of the Migration Regulations 1994. The central dispute was whether the applicant met these Schedule 3 criteria, specifically criteria 3001, 3003, 3004, and 3005.

The Tribunal was required to determine if the applicant satisfied the applicable Schedule 3 criteria. This involved assessing whether the application was lodged within 28 days of the relevant day (criterion 3001), whether criterion 3003 applied and was met, and crucially, whether criterion 3004 was satisfied. Criterion 3004 requires the Tribunal 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 complied substantially with visa conditions. The Tribunal also needed to consider criterion 3005, which relates to whether a visa had previously been granted based on these criteria.

The Tribunal found that the applicant satisfied criterion 3001 as the application was lodged within 28 days of their last substantive visa ceasing. Criterion 3003 was found not to apply to the applicant. However, the Tribunal concluded that the applicant did not satisfy criterion 3004. While the applicant's previous Visitor (Tourist) visa ceased on 3 March 2021 and the current application was lodged on 30 March 2021, satisfying the timeframes for criterion 3001, the applicant failed to demonstrate that they were not the holder of a substantive visa due to factors beyond their control, nor that there were compelling reasons for granting the visa, as required by criterion 3004.

Consequently, as the applicant did not satisfy the applicable Schedule 3 criteria for the grant of a Subclass 600 visa, the Tribunal affirmed the decision not to grant the visa.