1512378 (Migration)

[2015] AATA 3441

1512378 (Migration) [2015] AATA 3441 (1 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arnaud Veux

CASE NUMBER:  1512378

DIBP REFERENCE(S):  BCC2015/2616979 CLF2015/56765

MEMBER:Glen Cranwell

DATE:1 October 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.223(1) of Schedule 2 to the Regulations.

Statement made on 01 October 2015 at 2:05pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 September 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant entered Australia on 15 September 2014 as the holder of a Subclass 600 visitor visa which was valid until 15 September 2015. He applied for the visa under consideration in Australia on 8 September 2015 in Australia, seeking to remain in Australia until 16 October 2015.

3. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Each applicant must satisfy the primary criteria, which consist of common criteria and criteria applicable to the stream sought. A criterion which is common to each stream is in cl.600.215.

4. The delegate refused to grant the visa in this case on the basis that the visa applicant did not meet cl.600.215 at the time the delegate’s decision was made. The delegate found that the grant of the visa sought would result in the applicant being authorized to stay in Australia for more than 12 consecutive months as the holder of two visitor visas, but was not satisfied that exceptional circumstances existed for the grant of the visa, as required.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Clause 600.215 – exceptional circumstances

5. The issue in this case is whether cl.600.215 applies in this case, and if so, whether it is met. Clause 600.215 is set out in the following terms:

   600.215

   If the grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of:

   (a) one or more visitor visas; or

   (b) a Subclass 417 (Working Holiday) visa; or

   (c) a Subclass 462 (Work and Holiday) visa;

   exceptional circumstances exist for the grant of the visa.

6. The criterion is one that must be satisfied at the time of the Tribunal’s decision.

7. At the time the delegate made a decision in this matter, the applicant had been present in Australia as the holder of a Subclass 600 visitor visa for a period of almost 12 months. His visitor visa was due to expire on 15 September 2015. The applicant was seeking an extension of her visitor visa until 16 October 2015. At the time the delegate made the decision, therefore, the grant of the visa sought by the applicant would have resulted in him being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more visitor visas. In those circumstances, exceptional circumstances needed to be established for the criterion in cl.600.215 to be met.

8. At the time the Tribunal is considering this matter, however, the applicant holds a Bridging visa, which came into effect when his prior visitor visa expired on 15 September 2015, and which the applicant has held since that time. While the grant of a further visitor visa to the applicant now would result in a total period of more than 12 months in Australia on 2 visitor visas, the Tribunal considers that it would not result in more than 12 consecutive months on those visitor visas. This is because the period of stay on visitor visas is broken by a period on a Bridging visa. As a result, the requirement that he demonstrate that exceptional circumstances exist no longer applies in this case, as the condition for that requirement is not met.

9. In light of these circumstances, the Tribunal finds that cl.600.215 does not apply to the applicant.

10. The Regulations provide that subject to some exceptions, a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa: r.4.15. As the significant criterion in this case does not apply (rather than being satisfied), the Tribunal is unable to make a direction that the criterion is met. As a result, the Tribunal has considered an alternative criterion.

11. Clause 600.223(1) is a criterion which applies for applicants in the Tourist Stream. It requires that if an applicant was in Australia at the time of application, and held a substantive visa, the visa was not a Subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular) visa or a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

12. The applicant in this case was in Australia at the time of application and held a Class FA, Subclass 600 visa. He did not hold one of the visas proscribed in cl.600.223(1). As a result, the Tribunal finds that the requirements of cl.600.223(1) are met.

13. In light of the above findings, the Tribunal will remit the application to the Department to consider the remaining criteria for the visa. 

    DECISION

14. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    · cl.600.223(1) of Schedule 2 to the Regulations.

    Glen Cranwell
    Member