Gonzalez Eslava (Migration)

[2021] AATA 2254

Gonzalez Eslava (Migration) [2021] AATA 2254 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Karen Julieth Gonzalez Eslava

CASE NUMBER:  2016636

DIBP REFERENCE(S):  BCC2020/1643863

MEMBER:David Crawshay

DATE:4 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 04 June 2021 at 2:22pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of visa application – visa application lodged within 28 days – 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 28 October 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 visa applicant applied for the visa on 26 May 2020. 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 meet cl.600.223 because she did not satisfy Schedule 3 criterion 3001.

4. The applicant appeared before the Tribunal on 25 May 2021 to give evidence and present arguments. The hearing was conducted as a combined hearing, with the applicant’s husband, Mr Miguel Santiago Sepulveda Miranda, as the other applicant. A decision regarding his application is the subject of another decision. The Tribunal also heard from two witnesses – Ms Alejandra Alvarez and Ms Vivi Johana Garcia. Ms Alvarez was the applicant’s former migration agent and Ms Garcia is a migration agent who had been advising the applicant at various stages.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether cl.600.223 is met. Clause 600.223(2) provides as follows:

   (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.

8. It is not in dispute that the applicant in the present case was in Australia at the time of application, being 26 May 2020. Therefore, she is required to satisfy cl.600.223 for the grant of the visa.

9. It is also not in dispute that the applicant did not have a substantive visa at the time of application, having instead applied for the present visa while on a Bridging A visa (WA-010) associated with another visa application. She is therefore unable to satisfy cl.600.223(1) and must satisfy cl.600.223(2).

10. As the applicant’s last substantive visa was not a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream, she satisfies cl.600.223(2)(a).

11. The issue now becomes whether the applicant satisfies cl.600.223(2)(b), which requires her to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

    Criterion 3001

12. 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 set out in the attachment to this decision and is relevantly the last day when the applicant held a substantive visa.

13. The evidence in front of the Tribunal is that the applicant ceased to hold a substantive visa following the expiry of her Temporary Graduate visa (VC-485) on 13 March 2020 where she was a secondary visa-holder. The present visa application was lodged on 26 May 2020, which was more than 28 days after the relevant day.

14. At hearing, the applicant and Mr Sepulveda Miranda sought to explain the circumstances of their having made their applications out-of-time. A detailed summary of these circumstances is provided in the decision concerning Mr Sepulveda Miranda’s review. It suffices here to say that the parties claim to have submitted an application for a student visa (with the applicant as a primary applicant and Mr Sepulveda Miranda as a secondary applicant) thirty minutes too late and, through a series of events, eventually lodged their visitor visa applications out-of-time – for Mr Sepulveda Miranda, on 8 April 2020; for the applicant, on 26 May 2020 for the applicant.

15. The Tribunal notes in particular that the parties claim the applicant received a bridging A visa upon lodging her student visa whereas Mr Sepulveda Miranda received a notification of invalidity in relation to that visa application. It further notes that the applicant received a letter from the Department containing details for a medical screening associated with a student visa application which the Tribunal has seen. The applicant claims that she only received notification that she had not successfully lodged her student visa application around the time that she was due to undergo the medical screening on 21 May 2020.

16. The Tribunal notes that within this period, the applicant also claims to have made another application for a tourist visa – on 25 March 2020. A screenshot of a webpage has been provided showing the applicant as having submitted an online application on 25 March 2020 and having paid for that application on the same day. Unhelpfully, the screenshot does not contain details of the visa application submitted although the Tribunal assumes for present purposes that it in relation to the present visa application. In post-hearing submissions of
    

    [1] Item 3 of Schedule 1 to legislative instrument LIN 20/046 under paragraph 1236(3) of Schedule 1 to the Migration Regulations.

    30 May 2021 that accompanied the screenshot along with other documents, the applicant and Mr Sepulveda Miranda claim that this is evidence that the applicant paid the visa application within 28 days “according to law”. However, as the Tribunal finds that the applicant was required to submit a tourist visa application via a Form 1419 and not online,[1] it therefore finds that this application was not valid and the valid claim was eventually made in paper form on 26 May 2020.

17. The circumstances listed above are unfortunate to say the least. The Tribunal certainly has sympathy for the applicant and for Mr Sepulveda Miranda, who by an error in submitting a student visa slightly out-of-time, find themselves facing the potential of an exclusion period from Australia depending on which visa they choose to apply for in the future. Certainly, all the evidence suggests that their actions in submitting the application late and then seeking to regularise their status were not motivated by anything other than a genuine desire to abide by the rules. The Tribunal notes that their migration record to that point had been exemplary.

18. The Tribunal has considered evidence on the Department and Tribunal files, including evidence provided before the hearing on 19 May 2021 and post-hearing on 30 May 2021. It has had regard to the testimony of the applicant and Mr Sepulveda Miranda at hearing, as well as of Ms Alvarez and Ms Garcia. However, and in spite of this evidence and of the unfortunate circumstances described within it, the Tribunal finds that it has no discretion to depart from the requirement that the applicant meet criterion 3001.

19. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

20. The applicant therefore does not satisfy cl.600.223(2)(b), which is a requirement for the grant of the visa

    DECISION

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

    David Crawshay
    Member