Dong (Migration)

[2019] AATA 1082

Dong (Migration) [2019] AATA 1082 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lishan Dong

CASE NUMBER:  1715086

DIBP REFERENCE(S):  BCC2017/2207679

MEMBER:Stavros Georgiadis

DATE:20 May 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to refuse the application for a Class FA (Subclass 600) Visitor (Tourist) visa.

Statement made on 20 May 2019 at 12:53pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – previously granted FA600 Visitor (Tourist) visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, Schedule 3, criterion 3005, cl 600.223(2)(b)

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 23 June 2017 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 as registered on 21 June 2017. The delegate refused to grant the visa on the basis that the applicant has previously been granted an FA600 Visitor (Tourist) visa by meeting the criteria set out in cl.600.223.  The delegate concluded the applicant did not meet Schedule 3 criterion 3005 and therefore, did not satisfy cl.600.223 for the grant of the visa - specifically cl.600.223(2)(b).

3. The applicant appeared before the Tribunal on 20 May 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the applicant meets Schedule 3 criterion 3005 to satisfy cl.600.223 for the grant of the visa.

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

6. The relevant Regulation is set out in clause 600.223 as below:

   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)  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.

7. Criterion 3005 set out in Schedule 3 of the Regulations as follows:

   3005 
             A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

   (a)  this Schedule; or
   (b) Schedule 6 of the Migration (1993) Regulations; or
      (c)  regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

8. At the hearing, the applicant explained that she attempted to lodge her present visa application on Friday 16 June 2017 on line but there was a computer outage that prevented this. She provided an email dated ‘16 June 2017 at 23:39’ of her unsuccessful attempt to lodge the visa application on-line together with letter dated 28 June 2017 explaining the above. The applicant’s substantive Subclass 600 visa had lapsed on 16 June 2017.

9. The applicant attended the Adelaide office of the Department of Immigration on Monday 19 June 2017 and at this time lodged her application for a Class FA Visitor (Tourist) visa in person and paid the applicable fee. The lodged application was registered on 21 June 2017.  At that time the applicant was also provided with a Bridging (Class D) visa WD-040 granted on 19 June 2017. The Bridging visa (Class D) is not a substantive visa and accordingly, the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

10. On 6 January 2015 the applicant had lodged an earlier application for a Class FA (Subclass 600) Visitor (Tourist) visa. The Department’s Movement details show that the applicant was onshore at the time and that her substantive visa had lapsed 2 days earlier.  This is consistent with the applicant’s oral evidence which the Tribunal accepts on this point.  Because the applicant’s Subclass 600 visa had lapsed earlier (on 4 January 2015) the applicant was an unlawful non-citizen of Australia as she did not hold a valid visa.  Given the applicant did not hold a valid visa at the time of lodgement, under cl.600.233(2)(b) of the Regulations she is required to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

11. The Department decided on 7 September 2015 that the applicant was deemed to have satisfied the criteria set out in cl.600.223.  The applicant was therefore, granted a Class FA (Subclass 600) Visitor (Tourist) visa.

12. The Tribunal finds that the applicant has previously been granted a Class FA (Subclass 600) Visitor (Tourist) visa on the basis of satisfying the criteria in cl.600.223(2).  Accordingly, the Tribunal finds the applicant does not meet Schedule 3 criterion 3005.  Therefore, the applicant does not meet cl.600.223.

13. As mandatory cl.600.223 has not been met, the applicant does not satisfy the criteria for the grant of a Subclass 600 Visitor (Tourist) stream visa.

    DECISION

14. The Tribunal affirms the decision to refuse the application for a Class FA (Subclass 600) Visitor (Tourist) visa.

    Stavros Georgiadis

    
    

    Member