He (Migration)

[2022] AATA 1953

He (Migration) [2022] AATA 1953 (3 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Angela He

CASE NUMBER:  2106953

HOME AFFAIRS REFERENCE:               BCC2021/247187

MEMBER:Rosa Gagliardi

DATE:3 June 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

Statement made on 03 June 2022 at 10:58am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – applicant delayed departure until graduation – factors beyond the applicant’s control – COVID19 border closures – relationship with an Australian citizen – bar on the applicant returning – 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 Home Affairs on 11 May 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).

2. The visa applicant applied for the visa on 12 February 2021. The delegate refused to grant the visa on the basis that he/she found that the application for a Visitor (Class FA) Subclass 600 visa (Tourist Stream) was lodged more than 28 days after the applicant last held a substantive visa and therefore found the applicant does not meet Schedule 3 criteria 3001 of regulation 600.223(2). For that reason, the delegate found that the applicant does not meet the relevant criteria in clause 600.223 in Schedule 2 of the Migration Regulations.

3. 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.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 because at the time she applied for the visa, she did not hold a relevant substantive visa and did not satisfy 3001 in Schedule 3 as she did not apply for the visa within the 28 days of expiry of the previous visa.

5. The applicant appeared before the Tribunal on 20 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Kadin Thomas Maslak and Mr Maslak’s grandmother, Ms Debra Ann Lupton.

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 the applicant meets the criteria for Criterion 3001 of Schedule 3, and ultimately meets cl.600.223. 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) and includes the last day when the applicant held a substantive visa. Specifically, cl.600.223 requires:

   
   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.
   
   

8. Criterion 3001 of Schedule 3 states:
   
   3001

   (1)  The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)  For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)  if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa--1 September 1994; or

   (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa--the day when the applicant last became an illegal entrant; or

   (c)  if the applicant:

   (i)  ceased to hold a substantive or criminal justice visa on or after
     1 September 1994; or

   (ii)  entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)  the last day when the applicant held a substantive or criminal
     justice visa; or

   (iv)  the day when the applicant last entered Australia unlawfully; or

   (d)  if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation--the later of:

   (i)  the day when that last substantive visa ceased to be in effect; and

   (ii)  the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

9. The applicant lodged an application for a Visitor (Tourist) (subclass 600) visa on 12 February 2021.  Her previous substantive visa – a Visitor visa - had expired on 10 January 2020.  It is not in contention that the applicant applied outside the 28-day time frame.

10. The applicant explained to the Tribunal that Covid-19, due to the border closures, had made it hard for her to leave Australia.  Additionally, she was studying here (an online United States course) and wanted to wait until graduation before departing.  Most importantly of all, she had an Australian citizen partner she had been together with for 2 years, and she was greatly concerned that the refusal of the Visitor visa would impede her being able to return to Australia to continue the relationship.  When she found out her visa had expired, she had attempted to remedy the situation by applying for a Bridging visa and was encouraged to do so by the immigration official she spoke to at the time. 

11. The Tribunal explained to the applicant and her witnesses that the Tribunal did not have any discretion in this matter as the regulations require strict compliance with Criterion 3001, even if the Tribunal has sympathy for the applicant’s circumstances. 

12. The Tribunal stated that it would be prepared to delay the decision to enable the applicant to complete her studies and to graduate at the end of May 2022, but that otherwise it could not assist the applicant.  The applicant will be granted a further Bridging visa to enable her to organise herself to depart Australia.

13. The Tribunal notes that the applicant is in a partnership with an Australian citizen and that any bar on the applicant returning would cause an Australian citizen and the applicant considerable hardship given the long-term nature of their relationship.  The Tribunal would ask the Department to take into account such hardship in consideration of any further visas for the applicant.

14. As the legislation is mandatory and cannot be varied by the Tribunal the Tribunal must affirm this decision.

    DECISION

15. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

    Rosa Gagliardi
    Member