Cohen (Migration)

[2022] AATA 1393

Cohen (Migration) [2022] AATA 1393 (26 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yarin Elran Cohen

CASE NUMBER:  2102309

HOME AFFAIRS REFERENCE:               BCC2020/2403509

MEMBER:L. Symons

DATE:26 April 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 26 April 2022 at 1:53pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – impact of the Covid 19 pandemic lockdowns – factors beyond the applicant’s control – relationship with an Australian partner – compelling reasons – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 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 Immigration on 17 February 2021 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Immigration (the Department) for the visa on 30 September 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 he did not satisfy the requirements of Schedule 3, criterion 3004. On 25 February 2021, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal, via video, on 21 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his partner, Ms Stephanie Green.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this case is whether cl.600.223, as referred to in the attachment below, is met.

7. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 17 February 2021 which indicates that his last substantive visa, which  was a subclass 417 Working Holiday visa, ceased on 7 September 2020, he applied for the subclass 600 Visitor visa on 30 September 2020 and was not the holder of a substantive visa at that time. Therefore, he is required to satisfy the requirements of cl.600.223(2).

8. 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, he must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. The Department refused his visa application on the basis that he did not satisfy 3004 as the delegate was not satisfied that there were factors beyond his control which prevented him from applying for the subclass 600 Visitor visa whilst holding a substantive visa.

9. Schedule 3 criterion 3004 is referred to in the attachment below. In the present case, the issue before the Tribunal is whether the applicant satisfies 3004(c) and 3004(d) which require 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.

10. The records of the Department indicate that on 3 February 2021 the delegate wrote to the applicant and invited him to comment on adverse information. His migration agent provided the Department with a written response dated 4 February 2021 in which he submitted, in part, that the reasons why the applicant made an application for a subclass 600 Visitor visa whilst the holder of a Bridging visa were beyond his control. He submitted that the applicant made an application for a second subclass 417 Working Holiday visa in August 2020 and planned to stay in Australia until he could commence his degree in Israel. On 25 September 2020, the Israeli government imposed a strict lockdown because of the Covid 19 pandemic.

11. The applicant’s migration agent submitted that, around the same time, the applicant’s employer in Sydney offered to financially support him studying in Sydney if he studied business and continued to work for the business and he decided to take up this offer. In view of the above, he decided to withdraw his application for a second subclass 417 Working Holiday visa and apply for a Visitor visa hoping for an opportunity to apply to an Australian education provider.  

12. The delegate was not satisfied that there were factors beyond the applicant’s control which prevented him from lodging the application for a subclass 600 Visitor visa whilst the holder of a substantive visa or that there were compelling reasons for the grant of the visa. The delegate found that he did not satisfy Schedule 3 criterion 3004.

13. During the hearing, the Tribunal discussed the above criteria for the subclass 600 Visitor visa with the applicant. He gave evidence that his circumstances have changed since he filed his visa application. He commenced a relationship with his Australian partner at the end of October 2020 and they formally moved in together on 1 June 2021. He has enrolled at Open University in Israel and plans to return to Israel to complete his studies and obtain employment in Israel. He has not worked in Australia since October 2020 and has been living off his savings and relying on his parents and partner for financial support.

14. The applicant gave evidence that in February 2022 he booked a flight to return to Israel. He wants to stay in Australia to attend his partner’s mother’s wedding which is a “big deal”. He and his partner have decided that she will move to Israel to be with him and he will apply for a Partner visa offshore. His partner wants to spend some time with her family members in Queensland after the wedding and will join him in Israel four weeks after he leaves Australia. He has provided the Tribunal with copies of a wedding invitation for a wedding on 21 May 2022 in Queensland and flights booked in his name from Sydney to Tel Aviv departing Sydney on 23 May 2022.    

15. The applicant gave evidence that he did not seek immigration advice from a migration agent until after he had applied for a second subclass 417 Working Holiday visa. He had options to apply for other visas (including a subclass 600 Visitor visa) before his substantive visa expired and did not do so. He conceded that these were factors that were within his control at that time. When asked whether there were any compelling reasons for the grant of the Visitor visa, he responded that the main reason is so that he can attend his Partner’s mother’s wedding. He would have returned to Israel before now if not for the wedding. His partner’s family is like his family as he has no family in Australia and they have welcomed him into their family.

16. The applicant’s partner, Ms Green, gave evidence in relation to their future plans which was consistent with the applicant’s evidence. She was unable to give firsthand evidence in relation to the applicant’s circumstances at the time of application as they were not in a formal relationship at that time.

17. Having considered all the evidence and the submission, the Tribunal finds that the applicant ceased to hold a substantive visa on or after 1 September 1994, being 7 September 2020. The Tribunal is not satisfied, on the evidence before it, that he was not the holder of a substantive visa at the time of application due to factors beyond his control. Accordingly, the Tribunal finds that he does not meet the requirements of Schedule 3, criterion 3004(c). As he does not satisfy criterion 3004(c), he is unable to satisfy criterion 3004 in its entirety. As he does not satisfy criterion 3004, he is unable to meet the requirements of cl.600.223(2)(b) and accordingly cl.600.223. 

18. For the above reasons, the Tribunal finds that the applicant does not satisfy the requirements of Schedule 3, criterion 3004 and therefore finds that the requirements of cl 600.223 are not met.

    DECISION

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

    L. Symons
    Member

    
    

ATTACHMENT

Schedule 2: Clause 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.

Schedule 3: Criterion 3004

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.