Bhullar (Migration)

[2021] AATA 5414

Bhullar (Migration) [2021] AATA 5414 (10 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh Bhullar

CASE NUMBER:  1910904

HOME AFFAIRS REFERENCE(S):          BCC2019/1744727

MEMBER:Nora Lamont

DATE:10 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2021 at 10:10am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – tourist stream – applicant did not hold a substantive visa at the time of lodgement –no factors beyond his control –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3004

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 16 April 2019 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 3 April 2019. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223(2) of the Migration Regulations because the applicant did not satisfy criterion 3004 as he did not hold a substantive visa at the time of lodgement and the delegate found that there were no factors beyond his control that prevented him from lodging his visa on time.

4. The applicant appeared before the Tribunal on 8 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   Background

5. The applicant first arrived in Australia in December of 2018. He came to Australia as a tourist and his brother lives here and is currently on a student visa. The applicant’s tourist visa ceased on 13 March 2019. On 3 April 2019 the applicant applied for a Subclass 600 visa stating he wished to stay in Australia to visit various tourist places in Victoria. The applicant also requested a few more days so that he could leave Australia legally.

6. The applicant stated that he misunderstood and miscalculated the date of his visa expiry and thought it was 3 of December 2019.

7. The applicant has his parents and other relatives back in India and his father has a farm which is where the applicant was working prior to his arrival in Australia. I asked the applicant what he had been doing since he had been in Australia since 2018 and legally cannot work. He said he gets help from his brother and friends and that he doesn’t really have any expenses. When I asked him if he had any money, he said he had $100. I asked him how he planned to buy a plane ticket to return to India without money and he said his family would help him.

8. I asked him if he got the visa what his plans were, and he said he wanted to go to Brisbane and Sydney before returning to India. He said it depends on how much time he had to stay in Australia and this misunderstanding would never happen again. I asked him if he knew it would take several years before his application was heard before the Tribunal. He said he did not realise it would take so long.

9. I asked him if it was his intention to return to India and he said it was and that he would go back to help his father on the farm.  I asked who was helping him now and he said his father had hired some people to help.

   The Tribunal has regard to the Migration Regulations and criterion for the grant of the visa under 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.

   10. In the applicant’s case it is Schedule 3 criteria 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.

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

11. The applicant did not hold a substantive visa at the time of his application lodgement. He said he misunderstood and mixed up the dates of his visa expiry. I am not satisfied that he had any compelling reasons for the late lodgement, nor did he have any factors that were beyond his control that stopped him from applying before his visa ceased.

12. Therefore, I am not satisfied that the applicant meets schedule 3 criterion 3004 or cl. 600.223(2) of the Migration Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    DECISION

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

    Nora Lamont
    Member