Bridge (Migration) - [2022] AATA 1816

Bridge (Migration) [2022] AATA 1816 (26 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Eileen Bridge
CASE NUMBER:  2110722
HOME AFFAIRS REFERENCE(S):          BCC2021/1387641
MEMBER:Jane Marquard
DATE:26 May 2022
PLACE OF DECISION:  Sydney
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:
·Public Interest Criterion 3004 for the purposes of cl 600.223 (2) of Schedule 2 to the Regulations.

Statement made on 26 May 2022 at 11:34am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – family mental health conditions – Immi Account error messages – expected COVID-19 pandemic extension period – factors beyond the applicant’s control – compelling reasons – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004
CASES
Babicci v MIMIA [2005] FCAFC 77
Liu v MIAC [2010] FMCA 60
MZYPZ v MIAC [2012] FCA 478
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
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 10 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).
The visa applicant applied for the visa on 6 July 2021. 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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which requires the visa applicant to satisfy the Minister that she meets Schedule 3 criteria. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because at the time she applied for the visa she did not hold a relevant substantive visa and did not satisfy criterion 3004 in Schedule 3 to the Regulations.
The visa applicant appeared before the Tribunal on 24 May 2022 to give evidence and present arguments in relation to issues arising under the review. The applicant’s daughter, Katie Bridge, also attended the hearing and the applicant confirmed that she would like Katie to speak on her behalf as she was nervous. The hearing was held by telephone due to restrictions imposed by the COVID-19 pandemic. The applicant and Katie confirmed that they could hear well. The Tribunal is satisfied…

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 Bridge (Migration)

Details

AGLC: Bridge (Migration) [2022] AATA 1816
Case: [2022] AATA 1816
Decision Date: 26 May 2022

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, made by an applicant who was in Australia at the time of application but did not hold a substantive visa. The applicant's last substantive visa, a Visitor visa Subclass 600, had expired on 26 June 2021. The decision was made by Jane Marquard, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 600.223 of Schedule 2 to the Migration Regulations 1994. Specifically, as the applicant did not hold a substantive visa at the time of application, the Tribunal had to determine if the applicant satisfied the criteria under clause 600.223(2), which included satisfying Schedule 3 criteria 3001, 3003, 3004, and 3005. The critical focus was on Public Interest Criterion 3004, which required the Tribunal to be satisfied of several sub-criteria, including that the applicant was not the holder of a substantive visa due to factors beyond their control, that there were compelling reasons for granting the visa, and that the applicant would have been able to be granted the visa if they had applied on the day they last held a substantive visa.

The Tribunal found that the applicant was in Australia when she applied for the visa on 6 July 2021 and did not hold a substantive visa at that time. It was also established that her last substantive visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, thus clause 600.223(2)(a) was not applicable. The Tribunal was satisfied that the applicant met the requirements of clause 600.223, including Public Interest Criterion 3004, based on factors beyond her control, compelling reasons, and substantial compliance with visa conditions.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, directing that the applicant meets Public Interest Criterion 3004 for the purposes of clause 600.223(2) of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of cl.600.223. That clause provides (in paraphrase):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.Was the applicant in Australia at the time of application? The Tribunal is satisfied that the applicant was in Australia at the time of application, being 6 July 2021. This is not an issue in dispute.Did the applicant hold a substantive visa at the time of application? The Tribunal is satisfied that the applicant did not hold a substantive visa at the time of application. As confirmed by the applicant at the Tribunal hearing and Departmental records, the last substantive visa held by her was a Visitor visa Subclass 600 which expired on 26 June 2021. Findings on Clause 600.223(1) As the applicant was in Australia and did not hold a substantive visa at the time of application, cl.600.223(1) is not applicable.Did she hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream? The last substantive visa was not one of these visas as it was a visitor visa. Therefore cl. 600.223(2)(a) is not applicable. She must satisfy cl.600.223(b).Does the applicant meet cl.600.223(b) in that she satisfies Schedule 3 criteria? The issue is whether the applicant satisfies cl.600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. In regard to Schedule 3 criteria 3004, the Tribunal must be satisfied of all of the following:·the applicant is not the holder of a substantive visa because of factors beyond his or her control – criterion 3004(c);·there are compelling reasons for granting the visa – criterion 3004(d);·the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant – criterion 3004(e);·the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa – criterion 3004(f);·the applicant intends to comply with any conditions of the visa – criterion 3004(g); and·the last visa or entry permit held (if any) 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 – criterion 3004(h).Is the applicant not the holder of a substantive visa because of factors beyond her control?

Decision

Reasons for decision

Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.600.223. 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: ·Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.