Gill (Migration)

[2021] AATA 3005

Gill (Migration) [2021] AATA 3005 (23 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harvrinder Singh Gill

CASE NUMBER:  2001655

DIBP REFERENCE(S):  BCC2019/751235

MEMBER:Scott Clarey

DATE:23 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 23 July 2021 at 3:41pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration on 14 January 2020 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 December 2019. 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 because at the time he applied for the visa he did hold a relevant substantive visa and he did not satisfy criterion 3001 in Schedule 3 to the Regulations.

4. The applicant was invited to appear before the Tribunal on 23 July 2021 (via teleconference) to give evidence and present arguments. The Tribunal received correspondence via email from the visa applicant’s representative on the morning of the scheduled Tribunal hearing that the applicant did not wish to appear before the Tribunal, that he wished to waive his right to a hearing. The representative (on behalf of his client) requested a decision be made by the Tribunal ‘on the papers’ on the basis of the documentary evidence before it. The scheduled Tribunal hearing on 23 July 2021 was subsequently cancelled.

5. As the applicant has requested a decision on the papers, the Tribunal has determined to proceed to a decision without taking any further action. This matter has therefore been determined on the evidence available to the Tribunal.

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

   Relevant background

7. The applicant is a 32-year old citizen of India. He last arrived in Australia on 31 May 2019 on a student (subclass 500) visa granted to him on 12 November 2018, valid until 30 September 2019. On 30 September 2019, his visa ceased. As was noted in the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), 30 September 2019 was the last day the applicant held a substantive visa in Australia. I note that (as far as the Tribunal is aware) it is not in dispute that the applicant was not the holder of a substantive visa on 19 December 2019 when the application under review was lodged.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case whether the applicant meets the requirements of cl. 600.223.

9. That clause provides:

   1)    If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not:

   a)a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

   b)Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

   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 satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

10. The applicant was in Australia on 19 December 2019 when he applied for the subclass 600 visa under review. On the evidence before the Tribunal, it is not in dispute that he did not hold a substantive visa at that time. The last substantive visa the applicant held was a TU subclass 500 (Student) visa that ceased on 30 September 2019. There is no suggestion that the applicant was the holder of one of the visas specified in cl. 600.223(2)(a). The issue is therefore whether the applicant satisfies the Schedule 3 criteria. The relevant criterion in this case is 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). In applicant’s circumstances, the relevant day is the last day he held a substantive visa.

11. The applicant’s last substantive visa ceased on 30 September 2019 and the application for the subclass 600 visa under review was made on 19 December 2019. On the basis of the evidence before it, the Tribunal therefore find that Mr Gill’s application was not lodged within 28 days of the relevant day.

12. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, he does not meet the requirements of cl. 600.223.

    DECISION

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

    Scott Clarey
    Member