Erro (Migration)

[2022] AATA 1757

Erro (Migration) [2022] AATA 1757 (11 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roberto Nicolas Erro

CASE NUMBER:  2105984

HOME AFFAIRS REFERENCE(S):          BCC2020/1972177

MEMBER:Antonio Dronjic

DATE:11 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 11 April 2022 at 9:32am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Schedule 3 criteria – whether holder of a substantive visa at the time of application – first visitor visa no longer in effect – definition of ‘visa period’ – application lodged outside of relevant timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 68, 77, 82
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 19 April 2021 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 July 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with several 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 satisfy Schedule 3 criterion 3001 for the purposes of meeting the requirements of cl 600.223. The delegate found that, on the day the applicant lodged the application for a Subclass 600 visa, he held a WE-050 Bridging (Class E).

4. The delegate concluded that the applicant was not a holder of a substantive visa at the time of application for the Subclass 600 visa and was therefore required to satisfy the Schedule 3 criteria (3001, 3003, 3004 and 3005).

5. The delegate found that the applicant last held a substantive Tourist visitor (Subclass 600) visa on 19 May 2020. As the applicant applied for a visitor visa that is subject to the current review on 24 July 2020 (which is more than 28 days after the applicant last held a substantive visa) the delegate concluded that he does not meet Schedule 3 criterion 3001 of cl 600.223(2).

6. The Tribunal notes that, in the primary decision record, the delegate mistakenly added a paragraph finding that the ‘applicant holds or held a Temporary Work (International Relations) visa (subclass 403) in the Domestic Worker (Diplomatic or Consular) stream’. There is no suggestion that the applicant ever held a Subclass 403 visa. This paragraph most likely resulted from cutting and pasting from the template used by the delegate.

7. The applicant applied to this Tribunal for review of the primary decision on 6 May 2021 and was represented in relation to the review by his registered migration agent. The applicant submitted a copy of the primary decision record with his review application.

8. On the same day the applicant’s representative submitted documentary evidence and submissions previously provided to the Department. The list of documents submitted on 6 May 2021 is attached to this decision and marked as Attachment A.

9. On 19 May 2021 and 2 June 2021, the applicant’s representative provided legal submissions to the Tribunal.

10. On 15 March 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a telephone hearing scheduled for 31 March 2022.

11. On 28 March 2022, the applicant’s newly appointed representative provided additional legal submissions.

12. The applicant appeared before the Tribunal on 31 March 2022 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

13. The applicant’s visa history is summarised in the representative’s submission of 28 March 2022 and those facts are not in dispute. Relevantly:

    ·On 31 December 2019, the applicant was granted a visitor visa by the Department valid for 12 months, permitting entry and a period of stay of up to 3 months on each arrival within that validity period. In this regard, the Department’s visa grant notification specifically provided:

    §Visa duration and travel

    §Date of grant 31 December 2019

    §Must not arrive after 31 December 2020

    §Length of stay 3 month(s) from the date of each arrival

    §Travel Multiple entries

    ·On 19 February 2020, the applicant arrived in Australia as a holder of a visitor visa;

    ·On 18 May 2020, due to COVID-19 travel restrictions imposed following his arrival, Mr Erro had been unable to depart Australia prior to the expiry of 3-month visitor visa period, and accordingly his subclass 600 visa permitting stay ceased to be in effect after this date, from 19 May 2020;

    ·On 25 May 2020, on advice from the Department, Mr Erro applied for and was granted his first Bridging Visa E (“BVE”);

    ·On 1 July 2020, the applicant was granted his second BVE; and

    ·On 24 July 2020, the applicant lodged the current visitor visa application with the Department.

14. In his submissions of 28 March 2022, the applicant’s representative submitted that, as a matter of proper statutory construction, Schedule 3 does not apply to the applicant’s circumstances because Mr Erro was in fact the holder of a substantive Subclass 600 visitor visa at all relevant times, notwithstanding that at the time of the present primary application on 24 July 2020, that visa was not in effect.

15. The Tribunal indicated that it would consider those submissions before making its decision. The Tribunal noted that the applicant’s first BVE (Bridging Visa E) was granted and came into effect on 25 May 2020 and that his second BVE was granted and came into effect on 1 July 2020. Noting that in his submissions the applicant conceded that his visitor visa granted on 31 December 2019 ceased to be in effect on 20 May 2020, the Tribunal invited the representative to provide additional legal submissions addressing the question whether the BVEs granted on 25 May 2020 and 1 July 2020 superseded any visitor visa that the applicant potentially held, taking into consideration that the applicant’s visitor visa granted on 31 December 2019 ceased to be in effect on 20 May 2020 and the BVEs came into effect on 25 May 2020 and 1 July 2020.

16. On 5 April 2020, the applicant’s representative provided additional legal submissions.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of the 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).

19. Based on the evidence before it, the Tribunal is satisfied that the applicant was not a holder of a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

    Was the applicant a holder of a substantive visa at the time of application for the visa that is subject to the current review?

20. The applicant’s representative submitted that, as a matter of proper statutory construction, Schedule 3 does not apply to the applicant’s circumstances. It is submitted that the applicant was in fact the holder of a substantive Subclass 600 visitor visa (the first visitor visa) at the time of application for the visa that is subject to the current review application (the second visitor visa), notwithstanding that first visitor visa was no longer in effect at the time of application for a second visitor visa.

21. The applicant conceded and, on the evidence before it, the Tribunal finds that by 24 July 2020, when the applicant’s second visitor visa application was lodged with the Department, the first Subclass 600 Visitor visa granted to him on 31 December 2019 had ceased to be in effect for more than 28 days.

22. The Tribunal further finds that the applicant’s visa granted on 31 December 2019 entitled him to travel to and enter Australia on multiple occasions during a 12-month period and to remain in Australia for no longer than three months on each occasion.

23. The representative relevantly submitted that:

    At law, we say that the applicant in the present case had not ceased to hold his substantive subclass 600 visa on 24 July 2020 when the present application was made - it was simply not in effect at that time. It was held by Mr Erro at all times between grant on 31 December 2019 up until the last day on which it permitted arrival in Australia, being 31 December 2020, and was accordingly held by him on 24 July 202 the first visitors visa was granted to the applicant on 31 December 2019 for a period of 12 months.

    …

    The language of Schedule 3 is very specific. Criterion 3001(1) in particular requires a valid application to be made within 28 days of the “relevant day”. In circumstances where an applicant has “ceased to hold” a substantive visa, the “relevant day” is defined under cl 3001(2) to mean the last day when the applicant held their substantive visa.

24. For the following reasons, the Tribunal does not accept that the applicant held a substantive visa at the time of application for a second visitor visa on 24 July 2020.

    Relevant law

25. According to s 77 of the Act, a non-citizen holds a visa at all times during the visa period for the visa. The visa period is defined in s 5(1) of the Act as the period beginning when the visa is granted and ending, in the case of a visa other than a bridging visa, when the visa ceases to be in effect.

26. Pursuant to s 82(7) of the Act, a visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.

27. Consistent with s 68 and s 82 of the Act, cl 600.512 allows the delegate to decide the period when the visa is in effect.

28. Section 68 of the Act prescribes:

    (1)  Subject to subsection (2), a visa has effect as soon as it is granted.

    (2)  A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:

    (a)  specified in the visa; or

    (b)  when an event, specified in the visa, happens.

    (3)  A visa can only be in effect during the visa period for the visa. 

29. In his evidence, the applicant conceded that his visitor visa granted to him on 31 December 2019 ceased to be in effect on 20 May 2020, three months after he arrived in Australia (on 19 February 2020).

30. The Tribunal does not accept the applicant’s submissions that s 77 of the Act should be interpreted inclusively, namely that ‘a non-citizen holds a visa including during the period when the visa is in effect, but not limited to that period’.

31. In the Tribunal’s view, there is nothing ambiguous in the legislative definition of ‘visa period’ in s 5(1) of the Act or s 77 of the Act. On its plain reading, the visa period ends when the visa ceases to be in effect. There is nothing in s 77 of the Act to indicate that the applicant can hold a visa outside the defined ‘visa period’. It follows that if the applicant’s visa ceases, he is no longer a holder of the visa.

32. Accordingly, in the present case, the Tribunal finds that the applicant did not hold a substantive visa at the time of the application and is therefore required to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

    Does the applicant satisfy the relevant Schedule 3 criteria?

    Criterion 3001

33. To satisfy criterion 3001, the application for the visa must have been validly made within 28 days after the relevant day. The ‘relevant day’ is defined in criterion 3001(2), as set out in Attachment B to this decision.

34. Based on the evidence before it, the Tribunal finds that the applicant lodged an application for a Visitor (Tourist) (Subclass 600) visa on 24 July 2020. On this date, the applicant was holding a WE-050 Bridging visa. The Tribunal further finds that the applicant last held a substantive visa on 20 May 2020.

35. Based on the evidence before it, the Tribunal finds that the application for a Visitor (Tourist) (Subclass 600) visa was lodged more than 28 days after the applicant last held a substantive visa. Therefore, the applicant does not meet criterion 3001 for the purposes of meeting cl 600.223(2).

36. 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.

    DECISION

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

    Antonio Dronjic
    Member

    Attachment A: Document List

    1.On 6 May 2021, the applicant’s representative provided the Tribunal with the following documentation:

    ·Applicant’s passport

    ·Department of Home Affairs invitation to comment on information letter dated 20 January 2021

    ·Applicant’s response, dated 27 January 2021, to the Department of Home Affairs invitation to comment on information letter

    ·Department’s notification and decision record dated 19 April 2021

    ATTACHMENT B  -  Extract from the Migration Regulations 1994

    Schedule 3

    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.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    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.