Gomez Calvo (Migration) - [2022] AATA 2407

Gomez Calvo (Migration) [2022] AATA 2407 (14 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Linda Margarita Gomez Calvo
CASE NUMBER:  2109192
HOME AFFAIRS REFERENCE(S):          BCC2021/4370

MEMBER:Naomi Schmitz
DATE:14 July 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl 600.223 of Schedule 2 to the Regulations.

Statement made on 14 July 2022 at 2:18pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made within 28 days of expiry of last substantive visa – factors beyond applicant’s control and compelling reasons for granting visa – partner’s essential work deployment and mandatory COVID quarantine in remote location with no WIFI – unable to lodge application – international travel restrictions – credible evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3004(c), (d)

CASES
Liu v MIAC [2010] FMCA 60
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v MIAC [2007] FMCA 318

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 29 June 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 19 March 2021.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because the delegate was not satisfied that the applicant met the requirements of Schedule 3004. Relevantly in this case, the delegate was not satisfied that the visa applicant satisfied criteria 3004(c), that the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control.
On 19 July 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.
On 16 May 2022 the Tribunal invited the applicant to appear at a Tribunal hearing commencing at 10:30am (VIC time) or 8:30am (WA time) on 8 June 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.
On 1 June 2022, the applicant’s de facto partner returned a signed response to hearing invitation. No other information or materials were submitted in support of the application for 0review.
The applicant appeared before the Tribunal on 8 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner The Tribunal hearing was conducted with the…

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 Gomez Calvo (Migration)

Details

AGLC: Gomez Calvo (Migration) [2022] AATA 2407
Case: [2022] AATA 2407
Decision Date: 14 July 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by Ms. Gomez Calvo. The applicant sought review of a decision to refuse her visa application. The core of the dispute revolved around the applicant's inability to lodge her visa application within 28 days of her last substantive visa expiring, due to circumstances beyond her control.

The Tribunal was required to determine whether the applicant met the criteria for the grant of a Visitor (Class FA) visa, Subclass 600, particularly in light of her failure to apply within the prescribed timeframe. This involved assessing whether the applicant satisfied Schedule 3 criteria, specifically criterion 3004, which requires the Minister to be satisfied that the applicant's failure to hold a substantive visa is due to factors beyond their control and that there are compelling reasons for granting the visa. The Tribunal also needed to consider whether the applicant had complied substantially with the conditions of her previous visas.

The Tribunal found that the applicant's partner's essential work deployment to a remote location, coupled with mandatory COVID-19 quarantine requirements that prevented internet access, constituted factors beyond the applicant's control. These circumstances, along with international travel restrictions, provided compelling reasons for her inability to lodge the application within the stipulated period. The Tribunal concluded that the applicant had provided credible evidence to support these claims and that criterion 600.223 of Schedule 2 to the Regulations was met. Consequently, the Tribunal remitted the application for reconsideration by the Minister.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEThe requirements of cl.600.223 (1) If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not a 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 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.The requirements of Schedule 3004 applyIf 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; andthe 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.Is criterion 3004 met? Criterion 3004 applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 600 visa.DECISION The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:·cl 600.223 of Schedule 2 to the RegulationsNaomi SchmitzMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.