2117292 (Migration)

[2022] AATA 1963

2117292 (Migration) [2022] AATA 1963 (11 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2117292

MEMBER:Nathan Goetz

DATE:11 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600

DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review that information that would identify the applicant, or her daughter must not be published by the Tribunal.

The Tribunal is satisfied it is in the public interest that this material not be published because it would unreasonably reveal sensitive details about the applicant’s daughter’s private or personal life.

Statement made on 11 May 2022 at 11:29am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – impact of the COVID19 pandemic – factors beyond the applicant’s control – support for injured family member – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 5, 46, 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001; rr 2.07, 2.12

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant identifies as [an age]-year-old female citizen of [Country 1] presently located in Australia.

3. The applicant last arrived in Australia [in] May 2019 on a visitor visa that had been granted on 13 March 2019. This visa ceased [in] May 2020.

4. On 8 October 2021 the applicant applied for a visitor visa. On 13 October 2021 a delegate determined that this visa application was invalid.

5. On 21 October 2021 the applicant applied for the visitor visa that is the subject of the review application. On 11 November 2021 the delegate refused to grant the visitor visa on the basis that the applicant did not satisfy Public Interest Criterion (‘PIC’) 3001 of Schedule 3 of the Migration Regulations 1994 (‘the Regulations’) as required by cl 600.223 of Schedule 2 of the Regulations. On 23 November 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant her the visitor visa.

6. On 20 April 2022 the Tribunal wrote to the applicant for two reasons.

7. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 11:00am on 11 May 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at the Tribunal hearing because the Tribunal was unable to make a decision favourable to the applicant on the basis of the material it had.

8. The second reason was to invite the applicant under s 359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review. The information and the applicant’s response is detailed later in this decision record.

9. On 11 May 2022 the applicant appeared at the Tribunal hearing by telephone. The Tribunal determined that a telephone hearing was appropriate in the circumstances. The applicant’s daughter also attended the Tribunal hearing.

   CRITERIA FOR THE VISITOR VISA

   600.223 

   (1)  If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

   (2)  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 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.

   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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant submitted a paper-based visitor visa application form signed on 21 October 2021. The Department stamp indicates it was received on 22 October 2021.

11. In that visitor visa application form, the applicant indicates she is presently in Australia. She wished to extend her stay until 19 November 2022. The reasons provided were that her daughter was recently the victim of [deleted], which resulted in her daughter having a disability and being in receipt of the NDIS. This required the applicant to be physically present in Australia as a support person. The applicant detailed that as travel restrictions were now easing, she could spend time with her daughter in New South Wales.

12. The applicant wrote that she currently held an Australia visitor visa and identified this as ‘other – Bridging visa.’

13. Attached to the visitor visa application form were various documents not relevant to the issue being considered by the Tribunal and are unnecessary to detail.

14. On 28 October 2021 the delegate wrote to the applicant under s 57 of the Act and raised with her ‘unfavourable information’ which may lead the delegate to refuse to grant the visitor visa. The letter detailed that the Department records indicated that the last substantive visa held by the applicant ceased [in] May 2020 and that there was no provision to grant the visitor visa to a person who applies for a visitor visa more than 28 days after their last substantive visa ceased. As the applicant held a bridging visa (and not a substantive visa) within 28 days of the lodgement of the visitor visa, she did not meet PIC 3001 and therefore could not be granted the visitor visa. The letter invited the applicant to comment on this information.

15. The visa applicant responded to the letter on 1 November 2021. In that response, the applicant wrote that it was not possible for her to return to [Country 1] before her previous visitor visa expired because of the pandemic. She also wrote that it was not possible for her to continue to stay with her daughter due to her disability and her ongoing needs connected with [incident] and insecurity of housing. She described her living arrangements during 2020 to 2021 as being unsettled. She had no fixed address until April 2021 when she moved into a house with a friend. She wrote that after arriving at that fixed address, she embarked on resolving her visa status, and detailed that she discovered that she was unable to apply for a substantive visa. She claimed that she found out she needed to gain a bridging visa for three to four months to enable her time to lodge an application for a substantive visa.

16. The Tribunal notes the contents of that response to the delegate, however the applicant clearly did not understand the effect of PIC 3001. In short compass, if the applicant did not apply for the visitor visa within 28 days of her last substantive visa ceasing, there was nothing that could be done. There is no discretion to waive the PIC 3001 requirements for the purpose of cl 600.223.

17. Bearing that in mind, the Tribunal wrote to the applicant under s 359A of the Act as a case management tool in the hope that the applicant would become aware of the fact that she simply could not be granted the visa and that she would give consideration to withdrawing the review application. In the letter, the Tribunal advised the applicant of the following information:

    “The particulars of the information are:

    Department records indicate that you last held a substantive visa (that is, a visitor visa) which expired [in] May 2020. On 21 October 2021 you applied for another visitor visa.

    Schedule 3001(1) requires that you make a valid visa application within 28 days after the existing visitor visa expired, meaning that you needed to make a valid visitor visa application by 30 May 2020. As you did not make a valid visitor visa application by that date, it appears that you would not satisfy Schedule 3001(1).

    This means that you would not meet Schedule 3001. If you did not meet Schedule 3001, then you would not satisfy cl 600.223(2)(b) and would not meet the criteria for a grant of the visitor visa.

18. This information is relevant to the review because it relates to your eligibility to meet the criteria for the grant of the visa. If we rely on this information in making our decision, we may affirm the decision under review.”

19. The letter invited the applicant to comment on or respond to this information by 4 May 2022, and provided a copy of PIC 3001 for the assistance of the applicant.

20. On 4 May 2022, the applicant’s daughter wrote to the Tribunal and advised that she had just been apprised of the information that had been forwarded to her mother from the migration agent last week. The agent told the applicant she would not be representing the applicant at the Tribunal hearing. The agent had the correspondence from the Tribunal for a week before passing it to her mother. The applicant told her daughter that she had the Tribunal hearing coming up on 11 May 2022. The letter detailed criticisms of the migration agent.

21. The applicant’s daughter claimed her mother had vision issues which made reading correspondence difficult and that she may not be able to advocate for herself. The applicant’s daughter indicated she wished to assist her moth and wanted to familiarise herself with the correspondence and the paperwork, and to provide additional information and documentation to help clarify the matter. She requested an extension of time to do so.

22. The Tribunal considered the request and notwithstanding the futility of the review application, agreed to extend the time for responding to the s 359A information from 4 May 2022 until 4pm on 6 May 2022. The Tribunal hoped that with the benefit of this time, the applicant would be able to understand that she could not be granted the visitor visa.

23. On 6 May 2022 the applicant wrote to the Tribunal and requested that the matter be delayed for a least a fortnight to ‘enable the furnishment of supporting material related to the sequence of events that led to the application for the visitor visa being declined.’ The applicant wrote that she had originally lodged a visitor visa application within the prescribed timeframe following her arrival in Australia, but the application was sent back due to the incapacity to lodge the required payment through the online portal. She took screenshots of the website failure which are stored somewhere on her computer. The applicant noted her vision impairment and that her daughter was concerned that this issue impedes her ability to understand the issue and provide all the information required.

24. She wrote that her daughter is the best person to help the applicant with this matter, but she is currently moving houses. The applicant requested a postponement of the hearing to enable her to finish the move and then provide the original visa application which was lodged in a timely fashion.

25. The Tribunal considered the request to postpone the Tribunal hearing but declined to do so.

26. Relevantly, s 46(1) requires the application to be for a specified class of visa, that it satisfies any requirements prescribed by the Regulations, and that any visa application charge that the Regulations require to be paid has been paid. Reg 2.07 sets out additional requirements for a valid application in conjunction with those set out in Schedule 1 for each visa class (made in approved form at approved place etc) Reg 2.12C sets out what the visa application charge is and includes the base application charge and any subsequent temporary application charge.

27. Whether the applicant applied for a visitor visa that was rejected is irrelevant to the issue being considered by the Tribunal. The applicant was required to lodge a valid application within the prescribed timeframe. A valid application means a visa application inclusive of the required payment. There is simply no discretion to waive the PIC 3001 requirements. A postponement of the Tribunal hearing would not change the fact that the review application concerned a visa application that was futile.

28. On 11 May 2022 the applicant appeared at the Tribunal hearing. The Tribunal discussed the operation of PIC 3001 and the fact that, for the purpose of cl 600.223, the requirement could not be waived.

    FINDINGS AND REASONS

29. The issue in the present case is whether the applicant satisfies PIC 3001 for the purpose of cl 600.223. There is no discretion to waive the PIC 3001 requirements for the purpose of cl 600.223.

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

31. The evidence is that the last substantive visa held by the applicant was a visitor visa granted [in] March 2019 which ceased [in] May 2020. A ‘substantive visa’ is defined in s 5 of the Act and is ‘visa other than a bridging visa, criminal justice visa or enforcement visa.’ Clearly, a visitor visa is therefore a substantive visa.

32. If the applicant wished to be granted another visitor visa, she needed to make a valid application for this type of visa within 28 days of her previous visitor visa ceasing. The evidence is she did not do so. Her reasons for not doing so are irrelevant for the purpose of PIC 3001.

33. As the applicant did not apply for the visitor visa until 21 October 2021, she cannot satisfy PIC 3001. As she cannot satisfy PIC 3001, she cannot satisfy cl 600.223.

    DECISION

34. The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600.

    Nathan Goetz
    Member