1602747 (Migration)

[2016] AATA 3847

1602747 (Migration) [2016] AATA 3847 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Amarjit Kaur Jangir Singh Sidhu

CASE NUMBER:  1602747

DIBP REFERENCE(S):  CLF2016/14913

MEMBER:Christian Carney

DATE:29 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 29 April 2016 at 3:39pm

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 11 February 2016 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 February 2016.  The delegate refused to grant the applicant the visa because the applicant did not satisfy the criteria in cl.600.223(2) as she did not hold a substantive visa at the time of application and did not satisfy Schedule 3 criterion 3004. 

3. The applicant appeared before the Tribunal on 22 April 2016 to give evidence and present arguments.  For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Clause 600.223 applies to applicants who were in Australia at the time the visa application was made.  It requires that the applicant held a substantive visa at the time of application. If the applicant did not hold a substantive visa at the time of application additional requirements must be met.  These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

5. The delegate’s decision record states that, at the time of application on 4 February 2016, the applicant was in Australia but was not the holder of a substantive visa, and that her last substantive visa was a subclass 601 Electronic Travel Authority which ceased on 9 January 2016.  

6. The delegate’s decision notes that, in her visa application form lodged on 4 February 2016, the applicant stated that her reason for a further stay was because she had lodged a Contributory Parent visa on 3 June 2015 and that she wishes to remain in Australia with her children who are Australian citizens and to assist her daughter to care for her children.

7. After she lodged her application, the delegate wrote to the applicant and informed her that it appeared that her application was made when she did not have a substantive visa and that she would have to satisfy the Schedule 3 criteria.  In response to that request, the applicant submitted that she had mistakenly believed that her Visitor visa allowed her to remain in Australia for 12 months and she was unaware that it only permitted her to stay in Australia for up to three months. 

8. The evidence in the Department’s movement records indicate that the subclass 601 Electronic Travel Authority the applicant used to enter Australia on 9 October 2015 was granted on 12 March 2015, and that it was a multiple entry visa that allowed her to stay in Australia for up to three months at a time. 

9. The Department’s movement records also indicate that, between 1989 and October 2015, the applicant entered Australia as the holder of a valid visa on 26 separate occasions.  There is no evidence in the Department’s records to indicate that, during any of those periods, she did not comply with a condition of a visa she held. 

   Evidence to the Tribunal

10. The applicant gave the Tribunal a copy of the delegate’s decision with her application for review. 

11. At the hearing, she confirmed her migration history and that she understood the reasons her application had been refused by the delegate.

12. The Tribunal explained the various requirements she was required to meet to satisfy the criteria for the grant of the subclass 600 Visitor visa.  The Tribunal discussed the fact that, because her last visa expired before she applied for the visa, she had to meet the Schedule 3 requirements in criterion 3001, 3003, 3004 and 3005.  Relevantly, she had to demonstrate that the reason she was ‘not the holder of a substantive visa’ was ‘because of factors beyond her control’. 

13. She confirmed that the reasons she did not hold a substantive visa at the time she applied for the current visa was because of an honestly-held mistaken belief that the Visitor visa she held at the time of her arrival on 9 October 2015 allowed her to stay in Australia for 12 months.  She maintained that she was ignorant to the fact that her visa had expired on 9 January 2016.  She confirmed that she was aware of the significance of her non-compliance in remaining in Australia after the expiry of her last visa. 

    Consideration of evidence and the requirements for the grant of the subclass 600 visa

14. The Tribunal is satisfied on the evidence before it that the applicant last entered Australia on 9 October 2015 as the holder of a subclass 601 Electronic Travel Authority and that that visa ceased on 9 January 2016.  Accordingly, the Tribunal is satisfied that, at the time she applied for the subclass 600 Visitor visa on 4 February 2016, she did not hold a substantive visa. 

15. In such circumstances, as set out in the relevant law in Appendix 1, the applicant is required, pursuant to clause 600.223, to meet the requirements of Schedule 3 criteria 3001, 3003, 3004 and 3005.  The issue in the applicant’s case, as set out in the delegate’s decision record, is her ability to meet the requirements of Criterion 3004.  Specifically, that criterion requires, amongst other things, that the Tribunal is satisfied that ‘the applicant is not the holder of a substantive visa because of factors beyond the applicant's control’. 

16. On the evidence before it, the Tribunal is prepared to accept that the reason the applicant did not hold a substantive visa at the time of her application on 4 February 2016 was because she was ignorant to the fact that her visa had expired on 9 January 2016 and was operating under a mistaken belief that her visa was still valid.  However, as discussed with her, such circumstances do not demonstrate or indicate that the reason she was not the holder of a substantive visa at the time of application was for factors or reasons ‘beyond her control’.  Indeed, apart from her ignorance, which in itself is no answer to the relevant question, there is no evidence to indicate that there was any factor or reason that caused the applicant to remain in Australia after 9 January 2016 without a substantive visa or caused her not to apply for the visa on or before 9 January 2016. 

17. Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time of her application because of factors beyond her control.  It follows that the Tribunal is not satisfied that the requirements of criterion 3004(c) are met.  This means that the requirements of criterion 3004 of Schedule 3 are not met for the purposes of cl.600.223(b) and that cl.600.223 is not met.

18. Based on the findings above, the applicant does not meet the requirements for the grant of the visa and the decision under review must be affirmed.

    DECISION

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

    Christian Carney
    Member

    
    

    APPENDIX 1 - RELEVANT LAW

    600.223

    If the applicant was in Australia at the time of application, and did not hold a substantive visa:

    (a) the last substantive visa the applicant held was not:

    (i) a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
    (ii)  a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; and

    (b) the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

    Schedule 3

    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.