De Leon (Migration)

[2022] AATA 2087

De Leon (Migration) [2022] AATA 2087 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pauline Ysabel Carigma De Leon

REPRESENTATIVE:  Mrs Gilda Ponferrada (MARN: 9902663)

CASE NUMBER:  2108468

HOME AFFAIRS REFERENCE:               BCC2020/2351225

MEMBER:Rosa Gagliardi

DATE:21 June 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:       

The Tribunal remits the application with the
direction that the applicant meets Criterion 3004
for the purposes of cl.600.223.

  
  

Statement made on 21 June 2022 at 2:34pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made after last substantive visa held – factors beyond applicant’s control and compelling reasons for granting visa – COVID-19 restrictions and applications for student and working visas – reliance on agent – skills shortage in work sector – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 16 June 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 21 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 criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this case, they include cl.600.223, which requires that if the applicant was in Australia at the time of an application, and did not hold a substantive visa, the applicant satisfies Schedule 3 criteria 3001, 3002, 3003, 3004 and 3005.

4. Schedule 3 criterion 3004 requires that if the applicant ceased to hold a substantive visa on or after 1 September 1994, the Minister is satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control; and there are compelling reasons for granting the visa.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223 because she did not hold a substantive visa at the time of the visa application and the delegate was not satisfied that this was due to factors beyond her control.  Nor were there any compelling reasons identified for the grant of the visa.

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether cl.600.223 is met.  As the applicant was in Australia and did not hold a substantive visa at the time application, cl.600.223 requires that she satisfies Schedule 3 criterion 3004 (the Schedule 3 criteria is cumulative and therefore if one fails, all fail). 
   
   

   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.

   Criterion 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.

9. The applicant applied for this visa on 21 September 2020 and she last held a substantive visa – a Temporary Skill Shortage Subclass GK-482 visa - which ceased on 29 August 2020.  As such, it is not contested that at the time of lodging this application (subject of review), the applicant did not hold a substantive visa.

10. The facts of the case are that the applicant initially held a Temporary Skill Shortage Subclass GK-482 visa which ceased on 29 August 2020.  The applicant had been working in Australia as a cook due to the skill shortage in this area at the time.  The applicant was let go from her job due to the pandemic in any event as businesses in the restaurant area were adversely affected.  Her migration agent at the time suggested the applicant apply for a Temporary Activity visa (subclass 408) - Australian Government endorsed events (COVID-19 Pandemic event).  The temporary visa permits persons to stay in Australia (for up to 12 months) to work if they are employed or have an offer of employment in a key sector or any other sector of the economy.[1]  Several key areas of economic activity are food processing and tourism and hospitality.[2]

    [1] Temporary Activity visa (subclass 408) Australian Government endorsed events (COVID-19 Pandemic event) (homeaffairs.gov.au), accessed on 21 June 2022.

    [2] Ibid. 

11. The applicant at this time was not sponsored, however, and on reflection her migration agent encouraged the applicant to withdraw the subclass 408 visa as she did not meet the requirements.  This left the applicant without a visa.  She has been living with a cousin to reduce costs and cashed out her superannuation during the COVID-19 pandemic to survive as she did not want to work without holding an appropriate visa.

12. The applicant wishes to study to undertake a Certificate IV in Commercial Cookery and then to attain a Diploma of Hospitality Management.  Relevant certificates of enrolments have been submitted to show the applicant’s intention to study in Australia in her field, also indicating that the Certificate IV alone would cost the applicant AUD22,500.  Indeed, the evidence demonstrates that the applicant had already started studying her Certificate IV in Commercial Cookery at TAFE Queensland, Whitsundays in 2021. 

13. At hearing the applicant stated that she would work while she studies (observing the requirements not to go over the limits set by the Department of Home Affairs for hours able to work per fortnight).  By the time the applicant had discovered that it was pointless to pursue the subclass 408 visa, her previous visa had expired, and she had no option but to apply for a Visitor visa.  In the circumstances, it is reasoned that the applicant should have applied for a subclass 500 visa instead of the subclass 408 visa and that the application for the Visitor visa for a month is to enable the applicant to regularise her status in Australia. 

14. The applicant is arguing that if the pandemic had not happened, she would have been eligible for the subclass 408 visa as she would have been employed in the food and hospitality industry.  She simply wants to be returned to the position she would have been had the pandemic not affected the hospitality industry to the degree that it did.

15. Instead of pursuing the student visa route or some other visa for which the visa applicant might have been eligible, on the applicant losing her job, she was wrongly advised to pursue the Covid visa (subclass 408) during a time when sponsorship or employment in a restaurant was going to be highly unlikely given the lockdowns and other restrictions imposed due to COVID-19.

16. The applicant stated at hearing that she was entirely reliant on her then migration agent to steer her as she had never intended to be in breach of Australia’s immigration laws.

    Factors beyond the applicant’s control

17. The applicant has argued that had the pandemic not caused the disruption it did to the restaurant sector she would in all likelihood have been granted a subclass 408 visa because she would have been in a specified sector to meet the requirements of the visa and she would not be in the situation she is currently in.  The Tribunal considers this argument has merit.  The applicant contends that the pandemic were the factors beyond her control that led her to not being employed in the sector for which she may have been eligible - a subclass 408.  In this context the Tribunal is satisfied that COVID-19 did constitute factors beyond the applicant’s control that led her to not having a substantive visa at the time of application for the Visitor visa (under review).

18. The Tribunal is not arguing that the migration agent who assisted the applicant at the time was negligent, however, it appears in the rush to resolve the applicant’s dilemma (which given the trajectory of the pandemic may not have been resolvable other than by lodgement of a subclass 500 visa), alternatives to the subclass 408 visa were not pursued.

19. The Tribunal finds that the pandemic together with the lack of strong representation led the applicant to not having a substantive visa at the time she lodged her Visitor visa and that these matters were factors beyond the control of the applicant.   

    Compelling reasons for the grant of the visa

20. The Tribunal considers that the applicant has a genuine intention to study in her chosen field, in an area of skills shortages. In a statement to 9NEWS President of the Australian Culinary Federation, Karen Doyle, stated “There is a huge shortage of skilled chefs and cooks in the culinary and hospitality industries”.  She said that while the shortage had pre-dated the COVID-19 crisis, the border closures that followed had exacerbated it.[3] 

    [3] Battling industry welcomes addition of chefs to skilled migrants list (9news.com.au), 22 June 2021, accessed on 21 June 2022.

21. The applicant also stated at hearing that there was a dire shortage of cooks in regional Australia, and she has submitted a letter from Merewether Surfhouse, Merewether, Newcastle, dated 8 June 2022, offering her a position as Cook for what appears to be a full-time position.  Whether the applicant would be able to study and work within the required limits is another matter if she pursues her courses.  If the applicant chooses to work full-time then a student visa may not be the appropriate route for her to take. 

22. The Tribunal cannot suggest pathways to the applicant but considers that there are compelling reasons for the grant of a short-term Visitor visa to enable her to explore her options for study/work in an area of skilled shortages on a lawful basis, given the applicant was unable to find work during the pandemic and given through no fault of her own, she was not eligible for a subclass 408 visa.

    DECISION

23. The Tribunal remits the application with the direction that the applicant meets Criterion 3004 for the purposes of cl.600.223.

Rosa Gagliardi
Member