Dhillon (Migration)

[2021] AATA 2654

Dhillon (Migration) [2021] AATA 2654 (8 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Gurwinder Kaur Dhillon

CASE NUMBER:  2016653

DIBP REFERENCE:  BCC2020/1532843

MEMBER:Rosa Gagliardi

DATE:8 June 2021

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 08 June 2021 at 1:01pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – application was made more than 28 days after the last substantive visa held by the applicant ceased – no discretion to waive the requirements –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 379

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 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 Immigration on 2 November 2020 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 May 2020. The delegate refused to grant the visa on the basis that the applicant did not meet the Schedule 3 criteria because the application had not been validly lodged within 28 days of the applicant last holding a substantive visa.

3. The applicant appeared before the Tribunal on 7 June 2021 to give evidence and present arguments, although she relied largely on her son, Mr Dhillon, to participate in the hearing, even the Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Clause 600.223 provides:
   
   

   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 criteria 3001 states that:
   
   

   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.

6. The issue in the present case is whether the applicant has lodged the Tourist visa application under review within 28 days of her last substantive visa.

7. The applicant last held a substantive FA 600 Tourist visa on 19 March 2020.  The application under review was lodged on 10 May 2020, therefore there is more than 28 days since the applicant’s last substantive visa and lodgement of the application.  As explained to the applicant and her son, this is where the Tribunal’s inquiry ends, and the applicant cannot meet the requirements for the grant of the visa.  The Tribunal is unable to take into account any circumstances leading to the non-lodgement within 28 days.  Either the applicant has lodged within the relevant time frame or she has not.  As she has not done so, the Tribunal has no discretion to waive the requirements of the visa.

8. Mr Dhillon stated that the visa application was lodged during COVID-19 and he had not been in Australia long himself.  His child was also born during this period so there had been a lot going on for him.  However, he had acted at all times in good faith and even his mother being unlawful for around 1 month had not been intentional.

9. Mr Dhillon explained that he had lodged the application within 28 days electronically, but he found out later that he had to lodge the Visitor visa application physically, that is, via the mail.  This is the reason the application was finally lodged outside the 28 days.  He also argued that he had been told by an immigration official that he should lodge the application electronically.  As put to Mr Dhillon at hearing, if he was misled at all by the Department this is a matter he should take up with the Secretary of the Department as the Tribunal is unable to investigate the Department’s processes and operations. 

10. Furthermore, Mr Dhillon expressed concerns that his mother would be returning to India where the COVID-19 pandemic had reached significant proportions and she would be alone.  The Tribunal sympathises with the applicant’s circumstances and the fact that her son wishes her to remain in Australia where she is safe for several more months.  Nonetheless, the Tribunal must reiterate that it can only apply the law as it is, and that it has no jurisdiction to take into account any extraneous matters.  As explained, if Mr Dhillon considers that there are humanitarian considerations and the circumstances meet the relevant guidelines, it is also open to him to seek Ministerial Intervention. 

    DECISION

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

    Rosa Gagliardi
    Member