Do Cabo Borges (Migration)

[2019] AATA 6471

Do Cabo Borges (Migration) [2019] AATA 6471 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Miqueline Do Cabo Borges

CASE NUMBER:  1836018

DIBP REFERENCE(S):  BCC2018/5368206 BCC2018/5368276

MEMBER:Ian Garnham

DATE:11 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) subclass 600 Tourist visa.

Statement made on 11 November 2019 at 10:25am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – holder of a substantive temporary visa in Australia – visa applicant departed Australia – telephone conference hearing contact not established – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3

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 4 December 2018 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 27 November 2018. The delegate refused to grant the visa on the basis that the visa applicant did not meet an essential criterion of the legislation (cl.600.223).

3. On 9 October 2019 the tribunal invited the applicant to attend a hearing in respect of her application for review with the tribunal, lodged on 13 July 2018.

4. On 11 October 2019 the visa applicant wrote to the tribunal and advised, among other things, that she had left Australia, with her partner, and would not be able to attend a hearing in person but could attend a video conference.

5. On 22 October 2019 the tribunal wrote to the visa applicant and advised, among other things, that when visa applicants are offshore the tribunal normally conducts hearings by telephone conference and that if she wished to proceed with the hearing a telephone contact number should be provided.

6. On 28 October 2019 the visa applicant wrote to the tribunal and advised that they did wish to participate in a hearing by telephone conference.  A telephone number was provided.

7. At the scheduled date and time of the hearing invitation (08/11/2019 at 11:00am) the tribunal attempted to contact the visa applicant on the telephone number provided.  The phone call was answered by a recorded message in the French language.  The tribunal made further attempts to make telephone contact with the visa applicant at hourly intervals and these calls were unanswered.

8. On this day, after the first calls had been made the tribunal wrote to the visa applicant and advised that it had been unable to contact her on the provided telephone number.  The visa applicant responded and advised that she believed that the tribunal had been trying to contact her and provided and alternative telephone number.

9. The tribunal attempted (a number of times) to contact the visa applicant on the alternative telephone number and on all occasions were advised that the number was not connected.

10. At approximately 4:00pm on this day the tribunal resolved to cancel the hearing due to non-attendance by the visa applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the visa applicant meets cl.600.223 of the Migration Regulations 1994 (the Regulations).

13. Clause 600.223 is a mandatory criterion of the Regulations and it must be met for an applicant to be granted this subclass visa.

14. It states:

    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.

15. Substantive visas are defined in section 5 of the Act:

    substantive visa means a visa other than:

    (a)  a bridging visa; or

    (b)  a criminal justice visa; or

    (c)  an enforcement visa.

16. In this case the visa applicant’s Movement Details demonstrate that she was in Australia at the time of application (27/11/2018). However, she did not hold a substantive visa at that time therefore she cannot meet subclause 600.223(1).

17. The last substantive visa held by the visa applicant was a subclass 500 Student visa that ceased to have effect on 12 September 2018.  From that time, until the visa applicant departed Australia on 25 June 2016 the visa applicant held Bridging visas.

18. Therefore the visa applicant meets cl.600.223(2)(a) but must also meet cl.600.223(2)(b).

19. Criterion 3001 requires that the visa applicant make a valid application within 28 days of the relevant day.  In this case the relevant day is the last day the visa applicant held a substantive visa (12/09/2018). The application was made more than 28 days after the relevant day and the visa applicant cannot meet criterion 3001. Therefore the visa applicant cannot meet cl.600.223 and the decision under review must be affirmed.

20. Based on the above facts the visa applicant has no prospect of success with this review; and due to the visa applicant’s advice that they have lodged a subclass 309 application and are contemplating further Tourist visa applications and, the tribunal’s view that it made significant attempts to contact the visa applicant on the day of the hearing, the tribunal resolved to decide the review based on the information before it.  

    DECISION

21. The tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) subclass 600 Tourist visa.

    Ian Garnham
    Member