Falle (Migration)

[2023] AATA 1547

Falle (Migration) [2023] AATA 1547 (10 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rosalie Fabrigas Falle

CASE NUMBER:  2212738

HOME AFFAIRS REFERENCE(S):          BCC2022/2988821

MEMBER:Joseph Lindsay

DATE:10 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 10 March 2023 at 2:07pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa – Schedule 3 criteria – factors beyond applicant’s control – bad weather – sick family member – departed Australia – ineligible for visa grant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.223, 600.411; Schedule 3, Criteria 3004

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 15 August 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was invited to participate in a video hearing with the Tribunal on 10 March 2023 at 10:30am. However, she did not participate in the hearing. The hearing invitation was emailed to the email address provided by the applicant. On the day of the hearing, the hearing attendant attempted several times to contact the applicant on the contact details provided but there was no response. Accordingly, the Tribunal has decided to make a decision on the information available to the Tribunal. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The Tribunal has considered the information in the delegate’s decision record dated 15 August 2022. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because she did not satisfy Schedule 3 criterion 3004.

4. The delegate’s decision states that the visa applicant last held a substantive Visitor (Tourist) (subclass 600) visa which ceased on 13 July 2022. After her substantive visa expired, the visa applicant applied for the visa on 1 August 2022. Her reasons for requesting the further stay were:

   I wish to visit more places but unfortunately I haven't had to do because of the bad weather during my past day of staying and because of the pandemic back in Hong Kong.

5. The delegate wrote to the visa applicant seeking an explanation as to why she thought she satisfied Schedule 3 criterion 3004. Schedule 3 criteria 3004 states that:

   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.

6. In response, the visa applicant indicated the reasons for the delay were bad weather, a sick family member, she got sick as well, and she could not get any hotel quarantine facility in Hong Kong due to Covid-19. This explanation did not satisfy the delegate.

7. In any event, the Tribunal is not bound by the delegate’s decision and is required to undertake a fresh review.

8. Clause 600.4 refers to “Circumstances applicable to grant.” Clause 600.411 states: 

   If the applicant is in Australia at the time of application, the applicant must be in Australia at the time of grant.

9. Movement records show that the visa applicant was in Australia when she applied for the visa, but that she departed Australia on 30 November 2022. If the visa applicant had chosen to participate in the hearing, the Tribunal could have asked her about this issue. Given the applicant failed to participate in the hearing, the Tribunal has decided to make a decision based on the available information.

10. The Tribunal accepts that the visa applicant was in Australia when she applied for the visa, but that she departed Australia on 30 November 2022. The Tribunal accepts that, at the time of this decision, the visa applicant is not in Australia, and she therefore does not satisfy cl 600.411. There is therefore no need to make a determination about whether or not she satisfies Schedule 3 criterion 3004 because even if she did she is still not eligible for the grant of the visa.

    DECISION

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

    Joseph Lindsay
    Member