Assoune Giacalone (Migration)

[2022] AATA 1644

Assoune Giacalone (Migration) [2022] AATA 1644 (11 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Johnatan Assoune Giacalone

CASE NUMBER:  2110793

HOME AFFAIRS REFERENCE:               BCC2021/570257

MEMBER:Lilly Mojsin

DATE:11 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 11 May 2022 at 4.20 pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – withdrawal of previous visa applications – factors beyond the applicant’s control – compelling reasons for granting the visa – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001

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 on 2 August 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 19 April 2021.

3. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. The applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because at the time of lodgement the applicant did not satisfy the requirements of Schedule 3, criterion 3001.

5. On 19 August 2021, the applicant applied to this Tribunal for a review of that decision, attaching a copy of the Department decision to the review application.

6. The applicant appeared before the Tribunal on 11 May 2022 via telephone. In making arrangements to hear the matter via telephone during COVID, the Tribunal had regard to the legislative objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

7. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The Tribunal was able to interact with the applicants and communicate effectively throughout the proceedings. The Tribunal is satisfied that the hearings provided a real opportunity to be heard.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether cl.600.223, set out in the attachment to this decision, is met.

9. Clause 600.223(2) requires the Tribunal to be satisfied that, if the applicant was in Australia at the time of application and did not hold a substantive visa, and the last substantive visa held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

10. The delegate was not satisfied the applicant met the requirements of the Schedule 3 criterion, 3001.

    Does the applicant satisfy the relevant Schedule 3 criteria?

    Criterion 3001

11. 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 3001(2), as set out in the attachment to this decision.

12. In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and 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 further entry permit, while the holder remained in Australia.

13. The applicant’s decision record, filed with the Tribunal, indicates the last substantive visa held by the applicant was a Working Holiday (subclass 417) visa which ceased on 15 December 2020. The applicant applied for a Visitor (Tourist) (subclass 600) visa on 19 April 2021 and was not the holder of a substantive visa at that time. Therefore, the applicant is required to satisfy the requirements of cl.600.223(2).

14. The records of the Department indicate that on 18 May 2021, the Department invited the applicant to address the information that the applicant did not hold a substantive visa within 28-days of lodging his application for a Visitor (Tourist) (subclass 600) visa. 

15. The applicant responded on 19 and 21 May 2021 stating he had been “trying to switch from visa applications I was missing some information about what I had to do to stay lawful and being able to apply for another visa”. The applicant withdrew an application for a second Working Holiday visa on 9 March 2021 and subsequently lodged this Visitor visa application on 19 April 2021. The applicant included Department letters he had received over time to support his submission. 

16. The applicant provided the Tribunal with documentation from the Department stating he had applied for a Visitor visa on 11 April 2021, however, the application was invalid and he was notified of this on 15 April 2021. The applicant then made this application on 19 April 2021.

17. The applicant also provided the Tribunal with documentation confirming the withdrawal of his Working Holiday visa application on 9 March 2021.

18. At the Tribunal hearing, the Tribunal explained to the applicant that criterion 3001 means the applicant was required to lodge his visitor application within 28 days of his previous TZ 417 Working Holiday (Extension) visa expiring and that lodging an application for another visa did not meet criterion 3001.

19. The Tribunal accept the applicant gave evidence in an honest and forthright manner. The Tribunal has sympathy for the applicant, but it has no discretion when assessing whether the applicant satisfies the requirements in Schedule 3, criterion 3001 and cl.600.223(2) for this visa.

20. Having considered all the evidence and the submission, the Tribunal finds that the applicant was in Australia at the time he applied for the subclass 600 Visitor visa on 19 April 2021. The Tribunal finds that his last substantive visa was a TZ 417 Working Holiday (Extension) visa expiring that ceased on 15 December 2020.

21. Therefore, the Tribunal finds that 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.

22. The Tribunal has considered whether the applicant satisfies schedule 3, criterion 3001, as required in cl.600.223(2)(b). The Tribunal finds that the applicant ceased to hold a substantive visa on or after 1 September 1994. The Tribunal finds that 15 December 2020 is the relevant day for the purposes of cl.600.223(2). The Tribunal finds that the application for the subclass 600 Visitor visa was not validly made within twenty-eight days of the relevant day.

23. Accordingly, the Tribunal finds that the applicant does not meet the requirements of Schedule 3, criterion 3001.

24. As the applicant does not satisfy criterion 3001, the applicant is unable to meet the remaining Schedule 3 criterion and therefore does not meet the requirements of cl.600.223(3)(b) and accordingly 600.223.

25. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed. 

    DECISION

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

    Lilly Mojsin
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 2

    600.223

    (1)If the applicant was in Australia at the time of the 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.

    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.

    3003

    If:

    (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.

    3004

    If 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.

    3005     

    A 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.