Chitty (Migration)

[2022] AATA 1811

Chitty (Migration) [2022] AATA 1811 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sadhana Rebecca Chitty

CASE NUMBER:  2106831

HOME AFFAIRS REFERENCE(S):          BCC2020/2717181

MEMBER:Meena Sripathy

DATE:1 June 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 01 June 2022 at 10:54am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – previous student visa applications withdrawn and invalid – COVID-19 border closures – no power to consider circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 5 May 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).

2. The visa applicant applied for the visa on 25 November 2020. 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 applicant did not meet cl 600.223 because the application was lodged more than 28 days after the applicant last held a substantive visa and therefore the applicant does not meet Schedule 3 criteria 3001.

4. The applicant appeared before the Tribunal on 1 June 2022 by video conference to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Relevantly to this matter cl 600.223 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, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

7. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.

   Does the applicant satisfy the relevant Schedule 3 criteria?

   Criterion 3001

8. 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.

9. The applicant last held a substantive VC-485 Temporary Skilled Post-Study Work visa on 19 January 2020.

10. On 2 March 2021 the Department sent the applicant a letter via email inviting them to provide comment in relation to the information that they did not hold a substantive visa within 28 days of lodging their application for a Tourist Stream (subclass 600) visa.  The applicant was informed that there is no provision to grant a Tourist Stream (subclass 600) visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. A Visitor (subclass 600) visa therefore cannot be granted to a person in their circumstances.

11. On the 8 March 2021 the applicant provided a response including a Confirmation of Enrolment certificate, a SOP from RGIT, and a submission letter explaining the circumstances which led to them to lodge the onshore Visitor visa application after their last substantive visa had expired. In the submission letter, the applicant explained their immigration history as a Student and Temporary Skilled visa holder and they had applied for a Student visa and subsequently requested a withdrawal of that visa application because their Migration agent stated the application could lead to a refusal. The applicant further states the COVID-19 pandemic has imposed travel restrictions so they were unable to depart Australia and decided to lodge an application for Tourist visa to retain a lawful status in Australia once they had consulted with various agents.

12. The application was refused by the delegate after considering this submission and information, on the basis that the applicant was lodged more than 28 days after the applicant last held a substantive visa and therefore the applicant does not meet schedule 3 criteria 3001.

13. The applicant applied for review to the Tribunal on 22 May 2021.

14. On 23 May 2022, the applicant submitted the following documents to the Tribunal in support of the review application:

    ·Copy of the letter submitted to the Department in response to the earlier invitation to comment

    ·Various CoE documents, correspondence relating to an invalid application for a Visitor visa lodged on 3 April 2020, Offer letter and Acceptance Agreement for a Graduate Diploma in Management course at Danford College dated 21 July 2020

    ·News article dated 2 December 2021 relating to India suspending international border reopening over variant fear

15. At the hearing on 1 June 2022 the applicant acknowledged and confirmed that her last substantive visa was her Subclass 485 visa that ceased on 19 January 2020.  She accepted that the current visitor visa application was made on 25 November 2020 and that this was more than 28 days later. The applicant explained the circumstances which led to this situation.  She said that she had applied for a student visa previously, while she held a substantive visa, but withdrew that application because she was having difficulty continuing her study at that time due to ongoing pain from a foot surgery she had recently had.  By the time she withdrew her student visa in March 2020, the borders had closed in India and she was unable to return home.  She was unsure of what to do next and, on advice from her agent, she applied online for a Visitor visa on 3 April 2020.  She was subsequently notified on 28 July 2020 that this application was invalid.  She did not know then that the reason it was invalid was that she was required to lodge a paper application because she did not have a substantive visa.  She eventually applied again for a Visitor visa on 25 November 2020 when she realised she could do so and this is the current application before the Tribunal. 

16. The Tribunal explained that the legislation gives it no power to consider the circumstances or her explanation for the late lodgement of the application, and regardless of the reasons, she does not appear to meet criteria 3001.  The applicant indicated that she understood this.  It asked her what her intentions are now.  She said she is keen to resume her study in Australia and would like to change her career path from accountancy to childcare.  She has applied for a course but she is not permitted to study on her current visa.  She has not returned home to date because she cannot re-enter Australia on her visa. 

17. The Tribunal explained that it will make a decision following this hearing on the information before it. 

18. The Tribunal indicated to the applicant that while it has no power or discretion to consider her individual circumstances, under s 351 of the Migration Act the Minister for Immigration has a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. This power to intervene is a personal, non compellable power only exercisable by the Minister in the public interest. It is a matter for her whether she wishes to seek Ministerial intervention under this provision or depart Australia and lodge a fresh application from offshore, and she may wish to seek further advice about her options.

19. On the evidence before it, confirmed by the applicant in her oral evidence at hearing, the Tribunal finds the applicant last held a substantive VC-485 Temporary Skilled Post-Study Work visa on 19 January 2020.  The present application was made on 25 November 2020.

20. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

21. For these reasons, the applicant does not satisfy criterion 3001 for the purposes of cl 600.223.

22. 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

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

    Meena Sripathy
    Member