Gursewak Singh (Migration) - [2024] AATA 838

Gursewak Singh (Migration) [2024] AATA 838 (10 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gursewak Singh
REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)
CASE NUMBER:  2304759
HOME AFFAIRS REFERENCE(S):          BCC2023/1494260

MEMBER:David Crawshay
DATE:10 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.

Statement made on 10 April 2024 at 3:05pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – not holder of substantive visa at time of application – factors beyond applicant’s control – misunderstanding of conditions and expiry date of previous visa – 3-month stay, with maximum stay of 12 months within 18-month period – relative’s 12-month stay visa – desire to avoid three-year ban not compelling reason – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3004(c), (d)
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v Minister for Immigration [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 23 March 2023 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 3 March 2023. 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 delegate refused to grant the visa on the basis that the applicant did not meet cl.600.223 because he did not satisfy Schedule 3 criterion 3004.
The applicant appeared before the Tribunal on 10 April 2024 to give evidence and present arguments. The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether cl.600.223 is met. Clause 600.223 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.
It is not in dispute that the applicant in the present case was in Australia at the time…

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 Gursewak Singh (Migration)

Details

AGLC: Gursewak Singh (Migration) [2024] AATA 838
Case: [2024] AATA 838
Decision Date: 10 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Gursewak Singh for a Visitor (Class FA) visa, subclass 600 (Visitor) tourist stream. Mr. Singh applied for the visa while he was in Australia and did not hold a substantive visa at the time of his application. The central issue was whether Mr. Singh met the requirements of clause 600.223 of the Migration Regulations 1994, specifically subclause (2)(b), which necessitates satisfying Schedule 3 criteria 3001, 3003, 3004, and 3005.

The Tribunal was required to determine if Mr. Singh satisfied Schedule 3 criterion 3004. This criterion applies when an applicant has ceased to hold a substantive visa and has not subsequently been granted a substantive visa. For criterion 3004 to be met, the Minister must be satisfied of several matters, including that the applicant is not holding a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, that the applicant has substantially complied with visa conditions, and that the applicant would have been eligible for the visa had they applied on the day they last held a substantive visa.

The Tribunal found that Mr. Singh’s last substantive visa expired on 17 February 2023, prior to his application for the Visitor visa on 3 March 2023. Consequently, he was required to satisfy criterion 3004. However, the Tribunal concluded that Mr. Singh did not meet criterion 3004. As satisfying Schedule 3 criterion 3004 was a prerequisite for meeting clause 600.223(2)(b), and therefore for the grant of the visa, Mr. Singh failed to satisfy the requirements for the visa.

The Tribunal affirmed the decision not to grant Mr. Singh the 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 the present case is whether cl.600.223 is met. Clause 600.223 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. It is not in dispute that the applicant in the present case was in Australia at the time of application, being 3 March 2023. Therefore, he is required to satisfy cl.600.223. It is also not in dispute that the applicant did not have a substantive visa at the time of application. He is therefore unable to satisfy cl.600.223(1) and must satisfy cl.600.223(2). The applicant’s last substantive visa was a Subclass 600 visa. As the applicant’s last substantive visa was not a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream, he satisfies cl.600.223(2)(a). The issue now becomes whether the applicant satisfies cl.600.223(2)(b), which requires him to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. Criterion3004 Criterion 3004 of Schedule 3 applies where, relevantly, an applicant ceased to hold a substantive visa or entered Australia unlawfully and has not subsequently been granted a substantive visa. In the present case, the applicant’s last substantive visa ceased on 17 February 2023, which is before the date he applied for the present visa. He is therefore required to satisfy criterion 3004. In these circumstances, the Minister must be satisfied of all of the following:·an 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); and·the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia – criterion 3004(h).Is the applicant not the holder of a substantive visa because of factors beyond his or her control?

Decision

Reasons for decision

Because the applicant does not meet Schedule 3 criterion 3004, he does not satisfy cl.600.223(2)(b), which is a requirement for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.David CrawshayMember

Ratio Decidendi

Legal Principle Established

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