Alharbi (Migration) - [2022] AATA 1298

Alharbi (Migration) [2022] AATA 1298 (4 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muslim Ayyad E Alharbi
REPRESENTATIVE:  Mr Mohamed Al-Fadhli (MARN: 1799282)
CASE NUMBER:  2109456
HOME AFFAIRS REFERENCE(S):          BCC2021/3232

MEMBER:Joseph Lindsay
DATE:4 May 2022
PLACE OF DECISION: Melbourne
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 of Schedule 2 to the Regulations.

Statement made on 4 May 2022 at 4:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – applicant not holder of substantive visa at time of making application – factors outside applicants’ control and compelling reasons for grant of visa – misunderstanding of expiry date of previous visa – COVID-19 travel restrictions – application made as soon as applicants became aware that previous visa expired – ongoing medical treatment and incapacity for travel – adult child’s high-level studies – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3004

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2021 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).
The visa applicant applied for the visa on 3 March 2021. The applicant attended the Tribunal by audio on 21 April 2022 to give evidence and present arguments. The applicant was represented and was assisted by an interpreter.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of cl.600.223 of the Regulations. Cl.600.223 provides that;
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: (Tribunal emphasis)
(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. (Tribunal emphasis)
The Tribunal notes that the applicant’s representative provided written submissions to the Tribunal that detailed the decision from the Department dated 13 July 2021, and the indicated that that information in those submissions was correct. The applicant made admissions that he lodged an application for an FA600 Visitor- Tourist Stream visa on 2 March 2021 and that he last held a substantive Tourist Stream (FA 600) visa on 22 February 2021.
The applicant’s representative provided the following background:
Mr Muslim Alharbi and his wife Mrs Hayat…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alharbi (Migration)

Details

AGLC: Alharbi (Migration) [2022] AATA 1298
Case: [2022] AATA 1298
Decision Date: 4 May 2022

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (tourist stream), made by Mr Muslim Alharbi. The dispute arose because the applicant was not the holder of a substantive visa at the time of his application. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the grant of the visa, specifically clause 600.223 of the Migration Regulations 1994.

The Tribunal considered whether the applicant satisfied clause 600.223, which outlines the requirements for applicants in Australia who do not hold a substantive visa at the time of application. This clause necessitates that the applicant's last substantive visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, and that they satisfy Schedule 3 criteria 3001, 3003, 3004, and 3005. The applicant admitted to lodging the application on 2 March 2021, with his last substantive visa having expired on 22 February 2021.

The Tribunal found that the applicant's circumstances, including a misunderstanding of his previous visa's expiry date, the imposition of COVID-19 travel restrictions preventing departure, and his subsequent application for a new visa as soon as he became aware of his unlawful status, constituted compelling reasons for the grant of the visa. The Tribunal noted the applicant's lack of prior non-compliance, his brief period of unlawfulness (8 days), and his engagement of a migration agent to regularise his status. These factors, combined with the ongoing medical treatment and incapacity for travel, and the need to remain in Australia to support his adult child's high-level studies, led the Tribunal to conclude that the applicant met the requirements of clause 600.223.

Accordingly, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The visa applicant applied for the visa on 3 March 2021. The applicant attended the Tribunal by audio on 21 April 2022 to give evidence and present arguments. The applicant was represented and was assisted by an interpreter. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of cl.600.223 of the Regulations. Cl.600.223 provides that; 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: (Tribunal emphasis)(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. (Tribunal emphasis) The Tribunal notes that the applicant’s representative provided written submissions to the Tribunal that detailed the decision from the Department dated 13 July 2021, and the indicated that that information in those submissions was correct. The applicant made admissions that he lodged an application for an FA600 Visitor- Tourist Stream visa on 2 March 2021 and that he last held a substantive Tourist Stream (FA 600) visa on 22 February 2021. The applicant’s representative provided the following background: Mr Muslim Alharbi and his wife Mrs Hayat Alharbi arrived in Australia in July 2018 with their daughter Ms Abrar Alharbi who has recently completed a Master of Advanced Nursing practice at the Queensland University of Technology. Ms Abrar Alharbi is in the process of enrolling in a PhD course. Ms Abrar Alharbi anticipates completing her studies in 2024. Ms Abrar Alharbi was the holder of a student visa (subclass 500) that was valid until 30 of July 2021. She has since applied for a Visitor (Tourist) visa while waiting for the new COE to be issued. Both her parents held visitor visas (subclass 600).The review applicant, his wife and their daughter last entered Australia on 22 February 2020. Shortly after entering Australia, travel restrictions were introduced due to COVID-19 and the family was unable to depart Australia accordingly. Even if the family was able to depart Australia, it would have been almost impossible for them to return with their daughter to Australia to continue her studies due to COVID-19 inward travel restrictions.Before addressing the review applicant’s compelling reasons, I would like to draw the Tribunal Member’s attention to the following points:• The review applicant has no history of non-compliance• The review applicant was unlawful for 8 days only before lodging the visitor visa application• The reason why the review applicant became unlawful, as explained above• The review applicant sought to regularise their status as soon as they became aware of it• The review applicant lodged a visitor visa application to replace the one that has expired and engaged the services of a Registered Migration Agent to handle the application after receiving a request for further information from the DHA.

Decision

Reasons for decision

Accordingly, the Tribunal finds that the applicant satisfies cl.600.223 and is therefore eligible for the grant of the Class FA Subclass 600 Visitor visa.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 of Schedule 2 to the Regulations.Joseph LindsayMember

Ratio Decidendi

Legal Principle Established

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