Cruz (Migration)

[2022] AATA 1819

Cruz (Migration) [2022] AATA 1819 (25 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Amelia Falcoto Cruz

CASE NUMBER:  2111519

HOME AFFAIRS REFERENCE(S):          BCC2021/446637

MEMBER:Mara Moustafine

DATE:25 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 25 May 2022 at 6:05pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – impact of the COVID-19 pandemic – family illness – 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 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).

2. The applicant applied for the visa on 24 March 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.

3. 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 hold a relevant substantive visa and she did not satisfy criterion 3004 in Schedule 3 to the Regulations.

4. The applicant applied for a review of this decision on 8 October 2021 and provided a copy of the delegate’s decision record with the application.

5. The applicant appeared before the Tribunal by teleconference on 25 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

6. The applicant was represented in relation to the review by her daughter.

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

   BACKGROUND

8. The applicant is a 63 year old national of the Philippines who has held a series of multiple entry FA600 Visitor visas since she first entered Australia in July 2017, the last of which ceased on 5 March 2021. She applied for an extension FA600 Visitor visa on 24 March 2021 stating that she wished to remain in Australia until 8 Aril 2021 as COVID-19 was still affecting flight schedules and exposure to travel would risk her health and safety considering her old age.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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).

10. 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

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 the applicant’s circumstances, the relevant day is the last day when she held a substantive visa. The evidence before the Tribunal indicates that the applicant’s last substantive visa ceased on 5 March 2021. She lodged this application for a Visitor visa on 24 March 2021.

13. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Criterion 3003

14. Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa and, on 31 August 1994, was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

    Criterion 3004

15. Criterion 3004 applies to an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not subsequently been granted a substantive visa.

16. It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond her control, that there are compelling reasons for granting the visa and that the applicant has complied substantially with the conditions applicable to the last of any entry permits, substantive visas and any subsequent bridging visa held by the applicant.

17. 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 she last held a substantive or criminal justice visa; or would have satisfied the criteria when 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.

18. Documents provided to the Tribunal in support of the visa application included a submission from the applicant’s daughter/representative and a copy of the letter to the Department explaining the circumstances whereby she failed to lodge her Visitor visa application within the validity of her previous visa. 

19. In her various submissions to the Department and Tribunal, the applicant’s daughter and representative took full responsibility for the failure to lodge the applicant’s visa extension application before the expiry of her last substantive visa. She stated that because of her poor English and lack of computer skills her mother relied on her to make her visa applications. However around the time her last visa was expiring, she had been under a lot of stress as she was working full time, studying and had some family issues, including the illness of her sister and brother-in-law in Switzerland. Her mother had reminded her a couple of times, however, due to a lot of things on her mind, she missed the application. 

20. At hearing the applicant told the Tribunal that she had been aware of the expiry date and had reminded her daughter of it several times. However, they had been overwhelmed by one problem after another with serious illnesses among family members and had overlooked the date. The applicant’s daughter/representative told the Tribunal that as soon as she realised that she had missed the date she tried to rectify matters by applying for a Bridging visa for her mother so she would not be unlawful. It had not been her intention to disregard the application or break the law.  She had applied to the AAT for review as she did not want her mother to have a bad record which might prevent her from visiting her daughter in Switzerland.

21. The Tribunal has considered the explanation provided by the applicant and her daughter/representative but is not satisfied that there were any factors beyond the applicant’s control that prevented her from lodging her visa application within the validity of her substantive visa. As discussed with her at the hearing, it was the applicant’s responsibility to be aware of the expiry date of her Visitor visa and to ensure that her daughter, whom she had elected to lodge the visa extension on her behalf, did so in accordance with the relevant laws and regulations. By her own evidence, the applicant’s daughter was working and studying at the time her mother’s visa extension application was due. Her failure to lodge it on time on behalf of the applicant was not the result of any incapacity, but rather a lack of attention to the matter. As it was the responsibility of the applicant to ensure that her visitor visa application was made before her existing Visitor visa expired, it was not a ‘factor beyond the applicant’s control’.

22. This being the case, the applicant does not satisfy criterion 3004.

23. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl 600.223.

24. 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

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

    Mara Moustafine
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    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.