Dema (Migration)

[2023] AATA 1529

Dema (Migration) [2023] AATA 1529 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ugyen Dema

CASE NUMBER:  2107752

HOME AFFAIRS REFERENCE(S):          BCC2021/46478

MEMBER:Moira Brophy

DATE:16 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 16 March 2023 at 10:35am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa – Schedule 3 criteria – application lodged outside of relevant timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criteria 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 7 June 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 visa 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 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 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that Mrs Dema did not satisfy cl.600.223 because at the time she applied for the visa she did hold a relevant substantive visa and she did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

5. On 23 February 2023 the Tribunal invited the applicant to a hearing to be conducted by way of a teleconference on 15 March 2020 at 11.00 am (WA time) and 2 pm (NSW time). The applicant was advised the member hearing the matter would be in NSW. She was advised that she should call the Tribunal on the number provided at the appointed time. She was provided with a unique conference number to be used.

6. There was no appearance made by way of a call from the applicant at the appointed time. At the time of inviting the applicant to a hearing she was advised that if she failed to appear the matter may be determined on the material the Tribunal currently had before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case whether Mrs Dema meets the requirements of cl. 600.223.

9. That clause provides:

   (1)If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not:

   (a)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

   (b)  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:

   (i)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

   (ii)  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.

10. Mrs Dema was in Australia at the time she applied for the visa. She did not hold a substantive visa at that time. The last substantive visa she held was a Subclass 600 (Tourist) visa and so it was not one of the visas specified in cl. 600.223. The issue is therefore whether Mrs Dema satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001 which is set out in the attachment to this decision.

11. 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).

12. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, for Mrs Dema’s substantive visa ceased on 14 February 2021 and the application for a further Visitor visa was made on 24 March 2021.

13. As the visa application was not made within 28 days of the relevant day, Mrs Dema does not satisfy criterion 3001. Therefore, Mrs Dema does not meet the requirements of cl. 600.223. The Tribunal does not have a discretion if the requirements of criterion 3001 are not met.

    DECISION

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

    Moira Brophy
    Member