Dhaubhadel (Migration)

[2022] AATA 1950

Dhaubhadel (Migration) [2022] AATA 1950 (2 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Urja Dhaubhadel

REPRESENTATIVE:  Mr Biwek Thapa (MARN: 0747526)

CASE NUMBER:  2106521

HOME AFFAIRS REFERENCE(S):          BCC2021/130626

MEMBER:Meena Sripathy

DATE:2 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 02 June 2022 at 11:08am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made more than 28 after last substantive visa held – COVID-19 restrictions and finances – no discretion to consider circumstances – combined hearing with husband’s review – request for referral for ministerial consideration not granted – 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 26 April 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 14 January 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 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 2 June 2022 by video conference to give evidence and present arguments. The hearing was combined with the review application of her husband, Mr Anuj Gautam (AAT ref. 2106519) who appeared by the same video link at the same time. The Tribunal took oral evidence from both parties. An interpreter in the Nepalese language was present to assist the applicants and Tribunal, however the applicants gave their evidence in English and the services of the interpreter were not used.

5. The applicant was represented in relation to the review, who appeared by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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

9. 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.

10. The applicant last held a substantive Student (subclass 500) visa on 8 April 2020.

11. On 26 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.

12. On 1 April 2021 the Migration agent provided a letter from the applicant via email addressing the criteria. In the response, the applicant states they intended to return home to Nepal with their spouse as their family could not support their education in Australia however they could not afford air tickets to return home. The applicant further states they were going through mental and psychological stress, anxiety and panic attacks at the time which led them to become unlawful. The applicant states their parents are now in the position to financially support their stay while they continue their studies however due to their visa status, they are not eligible to apply for a Student visa so they decided to apply for a 600 Visitor Visa application.

13. The application was refused by the delegate after considering this submission and information, on the basis that 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.

14. The applicant applied for review to the Tribunal on 16 May 2021.

15. On 30 May 2022, the applicant submitted the following documents to the Tribunal in support of the review application:

    a.An updated version of the letter of explanation submitted to the Department in response to the earlier invitation to comment

    b.Applicant’s email correspondence with the Department in August- September 2020 seeking advice regarding his visa situation

    c.Copies of visa grant letters relating to the applicant’s previous student visas

    d.Employment Status letter dated 3 May 2022 relating to the applicant’s wife.

16. At the hearing on 2 June 2022 the applicants explained their situation.  They wanted to apply for another student visa before their previous visa ceased on 8 April 2020, and contacted their parents in Nepal to discuss financial support for the application.  By this time the circumstances of the COVID 19 pandemic had begun to affect their families in Nepal and their family business was forced to shut down.  Therefore their parents’ were unable to financially support them and suggested they return home.  Initially it was their intention to return and they began to explore the appropriate visa.  In this way they ended up applying for and being granted a BVE.  They were unaware of other options for visas they could apply for in the situation of the COVID pandemic.  They did not realise the implications of applying for a BVE would prevent them applying for other visas and also not allow them to study.  By the time they made contact with the Department they realised this.  They contacted an agent to find out about how they could apply for a student visa to resume their studies and were informed that the only visa they could apply for was a Visitor visa which they lodged in January 2021.  The applicants reiterated that they genuinely thought about returning to their home country in April 2020 but the situation was also very bad there. 

17. The Tribunal explained the issue before it is whether they meet cl.600.223, which includes criteria 3001.  It put to them that information before it indicates the last substantive visa they held ceased on 8 April 2020.  They acknowledged and agreed with this.  As this application was made more than 28 days since then, they do not meet criteria 3001.  The applicants indicated that they understood this.  The Tribunal explained that it has no discretion or power to consider their circumstances or reasons for why the application was made more than 28 days after their last visa ceased in deciding whether this criteria is met.

18. The Tribunal invited the representative to make submissions.  The representative indicated that the applicants’ understood the issue but as they have explained they had compelling circumstances which led them to this situation and he requests the Tribunal to consider recommending their cases for Ministerial intervention.  The applicant is currently working in the hospitality sector and would like to pursue study in this area and seeks to remain to continue to do that.

19. The Tribunal indicated that it would consider this, but it needs to look at the ministerial guidelines relating to the discretionary power which indicate that referrals should only be made in unique or exceptional circumstances.  While the Tribunal has sympathy with the applicants’ situation and acknowledges the confusion and difficulties they encountered at the beginning of the global pandemic, many people were in similar situations during that time and so it may not find it sufficiently unique or exceptional.  However even if the Tribunal does not make a recommendation, it will be open to them to seek Ministerial intervention directly.

    FINDINGS

20. On the evidence before it, confirmed by the applicant in her oral evidence at hearing, the Tribunal finds the applicant last held a substantive Student (subclass 500) visa on 8 April 2020.  The present application was made on 14 January 2021.

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

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

23. 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.

    Ministerial intervention

24. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister 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.

25. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. While the Tribunal has some sympathy with the applicant’s situation and explanations, it is not satisfied on the material before it, that their circumstances are sufficiently unique or exceptional.   The Tribunal notes that the applicant can still make a request directly to the Minister, with more supporting evidence.

    DECISION

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

    Meena Sripathy
    Member