Wellage (Migration)

The Administrative Appeals Tribunal considered the case of an applicant, a Sri Lankan citizen, who sought review of a decision concerning his application for a Visitor (Class FA) visa, Subclass 600. The applicant had arrived in Australia on a Subclass 408 Sports Activity visa to play cricket, with a contract for approximately eight months. His return flight to Sri Lanka, scheduled for 24 March 2020, was cancelled due to the Sri Lankan government's suspension of all inbound flights. The applicant's Subclass 408 visa expired on the same day his flight was due to depart. He subsequently applied for a Visitor visa on 7 April 2020, while remaining in Australia and without holding a substantive visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 600.223 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant satisfied criterion 3004, which requires the Minister to be satisfied that the applicant is without a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with visa conditions. The Tribunal also considered whether the applicant would have been entitled to the visa had he applied on the day his last substantive visa expired.

The Tribunal reasoned that the applicant had met criterion 3001, as his visa application was lodged within 28 days of his last substantive visa ceasing. Regarding criterion 3004, the Tribunal found that the suspension of flights into Sri Lanka constituted a factor beyond the applicant's control, preventing his departure. The Tribunal also considered the impact of the COVID-19 pandemic, noting that the flight suspension was initially temporary and that there was an absence of clear, publicly available direction regarding such circumstances. The Tribunal concluded that the applicant had substantially complied with the conditions of his previous visa and that compelling reasons existed for granting the visa, particularly given the unforeseen circumstances.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration. The Tribunal directed that the applicant met the requirements of clause 600.223, including criterion 3004, for the grant of the visa.