Francis (Migration)

[2021] AATA 4259

Francis (Migration) [2021] AATA 4259 (9 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Subin Francis

CASE NUMBER:  2018269

DIBP REFERENCE(S):  BCC2020/1592424

MEMBER:Naomi Schmitz

DATE AND TIME OF

ORAL DECISION AND REASONS:         9 July 2021 at 9:45 am (VIC time)

DATE OF WRITTEN RECORD:                20 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 20 August 2021 at 1:18pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa at time of application – Schedule 3 criteria – application lodged outside of relevant timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3001

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 December 2020 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 9 July 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application to the Administrative Appeals Tribunal to review the decision made by a delegate of the Minister for Home Affairs on 7 December 2020 to refuse to grant the visa applicant Mr Francis’ application for a Visitor (Class FA) Subclass 600 visa.

4. The visa applicant applied for a Visitor visa on 12 May 2020. During the hearing he gave oral evidence of this date. This date was also contained in an undated cover letter written by the visa applicant which was submitted to the Tribunal.

5. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

6. The delegate refused to grant the visa on the basis that Mr Francis did not satisfy cl 600.223 because at the time he applied for the visa he was in Australia and did not hold a substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

7. If an applicant is in Australia at the time of application, to satisfy cl 600.223 the applicant must either:

   ·Have held a substantive visa other than a specified substantive temporary visa; or

   ·If they did not hold a substantive visa, their last substantive visa must not have been a specified visa and they must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

8. Mr Francis was in Australia at the time he applied for the visa.

9. At the time of application, Mr Francis did not hold a substantive visa, but was an unlawful non-citizen.

10. As such, the issue in the present case, is whether the applicant satisfies the Schedule 3 criteria, specifically criterion 3001. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. Relevant to this matter, the “relevant day” is defined in 3001(2), as being the last day you ceased to hold a substantive visa or criminal justice visa.

11. During the hearing Mr Francis gave oral evidence that his last substantive visa was VC-485 Post Study Work Visa which was valid until 2 February 2020. The date the last substantive visa ceased was noted in the delegate’s decision record, a copy of which was provided by the visa applicant to the Tribunal. Mr Francis gave evidence that he had read the decision record and that he understood the contents. Accordingly, the last day the visa applicant held a substantive visa was on 2 February 2020.

12. During the hearing, the visa applicant did not dispute when his substantive visa ceased and the date of lodgement for his Visitor (Class FA) Subclass 600 visa application.

13. The visa applicant therefore applied 100 days after he last held a substantive visa.

14. This period exceeds the statutory 28-day period and as such the visa applicant cannot meet criterion 3001.

15. During the hearing the visa applicant explained why he was late in lodging his Visitor visa application, including because he was stressed, and somewhat distracted due to the COVID-19 restrictions. The Tribunal also noted that the visa applicant provided a written response to the Department on 20 November 2020, stating that he failed to apply within 28 days due to health and family reasons and COVID-19 restrictions. He also stated that he had attempted to book an international flight, but was unable to find anything.   

16. The Tribunal therefore finds that the visa applicant failed to satisfy clause 600.223 as he did not hold a substantive visa at the time of application. He also did not satisfy criterion 3001 in that he did not lodge his application within 28 days of his last substantive visa, and therefore does not meet the requirements of cl 600.223.

17. For these reasons the Tribunal affirms the decision not to grant the visa applicant, Mr Francis, the Visitor (Class FA) visa.

    DECISION

18. The Tribunal affirms the decision under review.

    Naomi Schmitz
    Member