Huynh (Migration)

[2021] AATA 2841

Huynh (Migration) [2021] AATA 2841 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Trung Thu Huynh

CASE NUMBER:  2100281

HOME AFFAIRS REFERENCE(S):          BCC2020/1946104

MEMBER:Stephen Witts

DATE:2 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 02 July 2021 at 12:39pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – application was made more than 28 days after the last substantive visa held by the applicant ceased – applicant failed to meet PIC 3001 – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 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 22 December 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 21 July 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 criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl. 600.223 because the delegate was not satisfied that when the applicant applied for the visa she did not meet criterion 3001 in Schedule 3 to the Regulations

5. The applicant appeared before the Tribunal on 1 June 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the applicant’s son, Mr Nguyen.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. For the following reasons, the Tribunal has concluded that the decision and review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. That clause provides:

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

    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)  a Subclass 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.

11. According to the delegate’s decision record dated 22 December 2020 the applicant lodged an application for a tourist visa on 21 July 2020. According to the delegate the applicant held a bridging visa which had been in effect since 25 June 2020. According to the delegate the applicant held a visa which was not a substantive visa and that therefore she must satisfy Schedule 3 criteria. According to the delegate the applicant last held a substantive 600 visa on 1 June 2020. According to the delegate there is no provision to grant a tourist visa to a person who applies for the visa 28 days after their last substantive visa ceased.

12. At the hearing, the applicant stated that she wanted to see her siblings in Australia. She stated that she has been back and forth between Vietnam and Australia several times and has always abided by the law. She stated that she knew she had to request an extension of her visa. She stated that she wanted to sponsor her parents to Australia and considered making a sponsorship application. She stated that she then withdrew it. She stated that this caused her to delay her other application. She apologised that she did not wish to return to Vietnam at this stage because of the current pandemic.

13. The Tribunal has considered the applicant’s evidence carefully and notes that the applicant has not refuted the contention made by the department that she did not adhere to the 28-day requirement. The Tribunal is satisfied that there is evidence before it that the applicant did not satisfy this criterion.

14. 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).

15. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, for the applicant’s substantive visa ceased on 1 June 2020 and the application was made on 21 July 2020.

    DECISION

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

    Stephen Witts
    Member