Gaddam (Migration)

[2023] AATA 1533

Gaddam (Migration) [2023] AATA 1533 (14 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ganesh Gaddam

REPRESENTATIVE:  Mr Guangyao Zhao (MARN: 1568816)

CASE NUMBER:  2109425

HOME AFFAIRS REFERENCE(S):          BCC2021/1056640

MEMBER:Margie Bourke

DATE:14 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 14 March 2023 at 3:59pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa – 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, Criteria 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 5 July 2021 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 visa applicant applied for the visa on 6 May 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.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.600.223, which requires that if the visa applicant was in Australia at the time of application, the visa applicant satisfies either paragraph (1) or paragraph (2).

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223(2) because the delegate was satisfied the applicant was in Australia at the time of application, and did not hold a substantive visa at the time of application, and the applicant did not satisfy Schedule 3001.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant, and the nature of the review. The review did not involve an extensive amount of paperwork to be put to the applicant during the course of the hearing. The Tribunal was of the view that the conduct of the hearing by video would allow the applicant the opportunity to give evidence of present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The hearing was scheduled at a time when the availability of in-person hearings was restricted due to the ongoing pandemic. For these reasons, the Tribunal considered it was appropriate that the hearing was conducted by way of video.

6. The applicant appeared before the Tribunal by video on 14 March 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements of cl.600.223, which requires the Tribunal to be satisfied that the visa applicant was in Australia at the time of application, and either (1) held a substantive temporary visa, which was not a subclass 403 visa, or (2) did not hold a substantive visa and (a) the last substantive visa the applicant held was not a subclass 403 visa; and (b) the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

9. The Tribunal has considered the information contained in the Department’s decision record dated 5 July 2021, a copy of which was provided to the Tribunal by the applicant, the application for the visitor visa which is the subject of this review, and the undated submissions by the applicant’s representative and the applicant’s statement entitled Statement of Purpose provided to the Department.

10. The Tribunal has considered the oral evidence provided by the applicant in the hearing. The Tribunal finds the written and oral evidence before it both consistent and credible.

11. The Tribunal is satisfied that the time of application the applicant was in Australia.

12. The Tribunal is satisfied that the applicant had previously held a substantive visa in Australia which was a student visa, which expired on 4 March 2021.

13. The Tribunal is satisfied that the applicant had misunderstood the date that his previous substantive visa ceased, and had thought that it ceased on 24 March 2021.

14. The applicant applied for a bridging visa on 10 March 2021, after his previous visa had ceased, and which was granted on 30 April 2021.

15. The applicant applied for the visitor visa which is the subject of this review, which was lodged on 6 May 2021.

16. The Tribunal is satisfied that the time of application the applicant was not the holder of a substantive visa.

17. For the above reasons the Tribunal is satisfied that the requirements of cl.600.223(2) apply to the applicant.

18. The Tribunal is satisfied that the last substantive visa the applicant held was not a subclass 403 visa, and therefore the applicant meets the requirements of cl.600.223(2)(a).

19. Schedule 3001 requires that an application is validly made within 28 days after the relevant day.

20. The Tribunal is satisfied that the application for the visa was made on 6 May 2021. The Tribunal is satisfied that for the purposes of meeting the requirements of Schedule 3001 the relevant day for the visa applicant is the date the applicant ceased to hold a substantive visa, which is 4 March 2021.

21. The Tribunal accepts the evidence of the applicant that he does not want a visa refusal on his migration record. The Tribunal accepts the evidence of the applicant that he applied for the visitor visa to remain in Australia because travel to India was restricted and India was the seriously affected by the pandemic at that time. The Tribunal accepts the evidence of the applicant that he does not meet the requirements of the Schedule 3 criteria for reasons that involve the global pandemic.

22. The Tribunal is satisfied that the application for the visa was not made within 28 days after the relevant day. Therefore the Tribunal finds the applicant does not meet the requirements of Schedule 3001.

23. The Tribunal is not satisfied the applicant meets the requirements of Schedule 3 criteria 3001, and therefore the applicant does not meet the requirements of cl.600.223.

24. For the above reasons the Tribunal is not satisfied that the visa applicant meets the requirements of cl.600.223.

    DECISION

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

    Margie Bourke
    Member