1514162 (Migration)

[2016] AATA 3639

1514162 (Migration) [2016] AATA 3639 (5 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tzu-Han Yeh

CASE NUMBER:  1514162

DIBP REFERENCE(S):  BCC2015/268754

MEMBER:Meena Sripathy

DATE:5 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 05 April 2016 at 9:56am

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 29 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 applied for the visa on 15 September 2015. 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.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.223.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the criteria in cl.600.223 as the applicant did not hold a substantive visa at the time of application and the applicant did not provide any information to indicate that she was not the holder of a substantive visa because of factors beyond her control or that there were compelling reasons for granted the visa, and therefore she does not satisfy Schedule 3 criteria 3004.

5. The applicant appeared before the Tribunal on 4 April 2016 to give evidence and present arguments. The Tribunal also took evidence from Bryan Jacob Peterson, the applicant’s partner.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is a 32 year old Taiwanese national.  She applied for the visa on 15 September 2015 and requested a stay until 12 December 2015 for ‘tourism’ purposes.

8. At the hearing the applicant confirmed her migration history. She told the Tribunal she came to Australia on 12 June 2015 on a Tourist visa that was valid for 3 months to 12 September 2015.  She said that she was aware of the expiry date of her visa and asked a migration agent to assist her to lodge a further application in August 2015.  She paid the agent money and assumed the application had been lodged.  She did not know when the application was made until after her visa had been refused.   The Tribunal explained to the applicant that as her application was made after her substantive visa had expired she must meet the requirements of Schedule 3.  It explained the requirements arising in 3004, specifically whether the fact it was lodged after the visa expired was due to factors beyond her control and whether there are compelling reasons for the grant of the visa and invited her to put forward information or arguments.

9. In response she said she was not aware of any request for information to be provided because the agent did not tell her of any request for information.  The reason the application was lodged late was not her fault, as she asked the agent one month earlier and paid the money.  In relation to compelling circumstances, she stated that she wants to spend more time in Australia to accompany her boyfriend and spend time with him and travel around. She appealed the decision because the Department officer told her that because her application was refused she cannot make any other application in Australia and must depart the country.  The Tribunal put to the applicant that her visa application indicates she requested a period of three months but now more than 6 months has passed and asked her what her plans are now.  She repeated that she wants to spend more time with her partner here. 

10. In his evidence to the Tribunal Mr Peterson told the Tribunal that she sought out an agent to make her application for a further Tourist visa one month before the expiry date and she had no idea that the agent did not lodge the application in time.  They plan to eventually make a Partner visa application and she wants further time to spend in Australia with him.

11. The issue in this case is whether the applicant meets clause 600.223.

    The applicant’s visa status and related requirements

12. Clause 600.223 applies to applicants who were in Australia at the time the visa application was made.  It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive visa, certain additional requirements are met.  These requirements are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

    Is criterion 3001 met?

13. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision.

14. On the information before it, the Tribunal finds that the last substantive visa held by the applicant was a Temporary Visitor (Tourist) Subclass 601 visa which ceased on 12 September 2015.  The present application was made on 15 September 2015. 

15. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001. 

    Is criterion 3003 met?

16. Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

    Is criterion 3004 met?

17. Criterion 3004 applies if the applicant ceased to hold a substantive or criminal justice visa after 1 September 1994, or entered Australia unlawfully after that date and has not been granted a substantive visa. Generally speaking it requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, there are compelling reasons for granting the visa, and the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant. In addition, the Tribunal must be satisfied that: the applicant would have been entitled to be granted the visa on the day he or she last held a substantive or criminal justice visa, or would have been able to satisfy the specified visa criteria when he or she last entered Australia unlawfully; the applicant intends to comply with any conditions of the visa; and the last visa held (if it was a transitional (temporary) visa) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit while remaining in Australia.

18. On the evidence before it, including oral evidence at hearing and Department records, the Tribunal finds the applicant arrived in Australia on 12 June 2015 on a Tourist visa, which was valid to 12 September 2015.  The present application was made on 15 September 2015, three days after the expiry of her substantive visa.

19. The Tribunal has considered the applicant’s explanation for why her application was made after the date of expiry of her substantive visa.  She claimed to the Tribunal that she engaged an agent in August to lodge the application and had no knowledge that it was not lodged until after the visa expired.  Although the Tribunal notes that no supporting documentary evidence has been provided to corroborate this claim made orally at the hearing, such as evidence of her instruction to lodge an application prior to the date of expiry of her application, or the date of transfer of the relevant payment, and the application form submitted to the Department on 15 September 2015 itself did not indicate the applicant authorised any ‘authorised recipient’ or agent to act on her behalf, for the purposes of this review, the Tribunal is prepared to give the applicant the benefit of doubt in relation to this matter and on this basis it accepts that  she is not the holder of a substantive visa because of factors beyond her control.

20. However, for the following reasons, the Tribunal is not satisfied that there are compelling reasons for the grant of the visa. The applicant originally made her application seeking an extension of three months for ‘tourism’ purposes.  She has now been in Australia since the expiry of her last visa for over 6 months.  When asked by the Tribunal about her plans and the reasons she wishes to stay for further time in Australia given this passage of time, she said she would like to continue to spend time here with her boyfriend.  The applicant’s witness, Mr Peterson told the Tribunal that they would like in the future to apply for a Partner visa.  The Tribunal has carefully considered the applicant’s explanations and reasons for seeking an extension of her Tourist visa. While it understands her desire to remain in Australia for a longer period to continue to spend time with her boyfriend, it also observes that she has now had more than twice the period she originally requested for this purpose.  She has not provided any other evidence or made any other claims about why there are compelling reasons for the grant of this visa.  The Tribunal has considered Mr Peterson’s evidence that their intention is to make a Partner visa at some point in the future, however no reasons or evidence is before the Tribunal that suggests any compelling reason for that application to be made in Australia.  If this is their intention, a Partner visa application can be made in future by the applicant from outside Australia.  Therefore, on the material before it, and having regard to the passage of time since the application was made, the Tribunal is not satisfied that there are compelling reasons for the grant of the visa. 

21. Accordingly, the applicant does not satisfy criterion 3004. 

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Meena Sripathy
    Member

    
    

    ATTACHMENT

    Schedule 3

    3001 (1)     The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)     For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    (d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)the day when that last substantive visa ceased to be in effect; and

    (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    3003If:

    (a)     the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)    on 31 August 1994, the applicant was either:

    (i)an illegal entrant; or

    (ii)the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)     the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

    (d)    there are compelling reasons for granting the visa; and

    (e)     the applicant has complied substantially with the conditions that apply or applied to:

    (i)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)any subsequent bridging visa; and

    (f)     the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004If the applicant:

    (a)     ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)    entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)     the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

    (d)    there are compelling reasons for granting the visa; and

    (e)     the applicant has complied substantially with:

    (i)the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)     either:

    (i)in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)     this Schedule; or

    (b) Schedule 6 of the Migration (1993) Regulations; or

    (c)     regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

    Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.