Frantz (Migration) - [2022] AATA 3327

Frantz (Migration) [2022] AATA 3327 (3 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Mechell Frantz
CASE NUMBER:  2118770
HOME AFFAIRS REFERENCE(S):          BCC2021/2001454
MEMBER:Nicole Burns
DATE:3 August 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 03 August 2022 at 11:01am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant was not the holder of a substantive visa at the time of application – applicant doesn’t meet the requirements of Schedule 3, criterion 3004(c) – Tribunal is not satisfised reasons constitute factors beyond her control either individually or cumulatively–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 362, 379
Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3004

CASES
Liu v MIAC [2010] FMCA 60
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 December 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 19 October 2021. 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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that cl 600.223 was not satisfied, because at the time the applicant applied for the visa she did not hold a substantive visa and did not satisfy criterion 3004 in Schedule 3 to the Regulations.
The applicant gave oral evidence to the Tribunal via video link on 2 August 2022 about the issues in her case.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements of cl.600.223 of the Regulations.
Departmental records (as confirmed at hearing) show the visa applicant was in Australia at the time of application, being 19 October 2021. Therefore, she is required to satisfy cl 600.223(2) for the grant of the visa, which provides:
(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) 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frantz (Migration)

Details

AGLC: Frantz (Migration) [2022] AATA 3327
Case: [2022] AATA 3327
Decision Date: 3 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a Visitor (Class FA) visa application, subclass 600 (Tourist stream), made by an applicant who was in Australia at the time of application and did not hold a substantive visa. The primary dispute concerned whether the applicant met the requirements of Schedule 3 of the Migration Regulations 1994, specifically criterion 3004(c).

The legal issue before the Tribunal was whether the applicant satisfied clause 600.223(2) of the Regulations, which requires an applicant in Australia without a substantive visa to meet certain criteria, including those in Schedule 3. The Tribunal specifically had to determine if the applicant was not the holder of a substantive visa due to factors beyond her control, as required by criterion 3004(c).

The Tribunal found that the applicant’s last substantive visa expired on 15 October 2021, and her application was lodged on 19 October 2021, thus meeting criterion 3001. However, the Tribunal was not satisfied that the applicant’s failure to hold a substantive visa at the time of application was due to factors beyond her control. Consequently, the Tribunal concluded that the applicant did not satisfy criterion 3004(c) and therefore did not meet the requirements of clause 600.223(2).

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements of cl.600.223 of the Regulations. Departmental records (as confirmed at hearing) show the visa applicant was in Australia at the time of application, being 19 October 2021. Therefore, she is required to satisfy cl 600.223(2) for the grant of the visa, which provides:(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) 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; orii) a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; andb)the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. The evidence before the Tribunal is that the applicant ceased to hold her last substantive visa on 15 October 2021 following the expiry of her previous Subclass 600 visa. Accordingly, the Tribunal finds the applicant did not have a substantive visa at the time of her application and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations) visa in the Domestic Worker stream. The applicant must therefore meet the requirements of criterion 3001 and 3004. Criterion 3003 and 3005 are not relevant to this review. Does the applicant meet criterion 3001? In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2) as the last day when the applicant held a substantive visa. As noted, the evidence before the Tribunal is that the application was lodged on 19 October 2021 and the last day the applicant held a substantive visa was 15 October 2021. The Tribunal is therefore satisfied her application was lodged within 28 days of the relevant day and she meets criterion 3001. Does the applicant meet criterion 3004? Schedule 3004(a) requires that the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994. The Tribunal is satisfied that the applicant ceased to hold a substantive visa on 1 October 2020. Therefore criterion (b) does not apply. With respect to the remaining provisions under criterion 3004, the Tribunal must be satisfied of all of the following, as discussed at hearing:·the applicant is not the holder of a substantive visa because of factors beyond his or her control – criterion 3004(c);·there are compelling reasons for granting the visa – criterion 3004(d);·the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant – criterion 3004(e);·the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa – criterion 3004(f);·the applicant intends to comply with any conditions of the visa – criterion 3004(g).

Decision

Reasons for decision

Accordingly, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time of application due to factors beyond her control. The Tribunal is not satisfied therefore that the applicant meets the requirements of Schedule 3, criterion 3004(c). She therefore does not satisfy cl 600.223(2).DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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