Jaya (Migration)

[2021] AATA 1721

Jaya (Migration) [2021] AATA 1721 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rita Oktavia Bt Djamalus Jaya

CASE NUMBER:  2100248

HOME AFFAIRS REFERENCE(S):          BCC2020/1943297

MEMBER:Tania Flood

DATE:26 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 26 May 2021 at 12:01pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after holding last substantive visa – consent to decision without hearing – request for referral for ministerial consideration but no submissions made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 425(2)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3001(2)

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 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 hold a relevant substantive visa and she did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

4. The applicant was represented in relation to the review by her registered migration agent.

5. The applicant was invited to a telephone hearing on 28 May 2021. On 14 May 2021, the Tribunal received a signed letter from the applicant stating that she is waiving her right to a hearing and requests a decision to be made on the papers. The applicant’s representative also advised the Tribunal in writing that the applicant waives her right to a hearing. The applicant’s representative requested that the matter be referred for ministerial intervention if a favourable decision cannot be made by the Tribunal.

6. The Tribunal has decided to proceed to a decision without a hearing pursuant to s. 425(2)(b) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a citizen of Indonesia. She was granted a subclass 600 Visitor visa on 14 October 2019 and arrived in Australia on 20 October 2019. While onshore, she was granted a further subclass 600 Visitor visa. That visa ceased on 16 April 2020. She was granted a subclass 050 Bridging visa on 22 April 2020. She applied for a further onshore subclass 600 Visitor visa on 21 July 2020. That application was invalid.

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

10. That clause provides:

    (1)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.

    (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:

    (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. The applicant was in Australia at the time she applied for the visa. She did not hold a substantive visa at that time. The last substantive visa she held was a subclass 600 Visitor visa, which is not one of the visas specified in cl. 600.223. The issue is therefore whether the applicant satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001 which is set out in the attachment to this decision.

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) and in this case is the last day when she held a substantive visa.

13. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day. The applicant’s substantive visa ceased on 16 April 2020. On 21 July 2020 she lodged the visa application which is the subject of this review. 

14. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, the applicant does not meet the requirements of cl. 600.223.

15. The Tribunal notes the request that consideration be given to a ministerial intervention recommendation however no submissions were made as to why it would be appropriate to do so in this case.  Based on the available information the Tribunal is not satisfied that the circumstances warrant that it recommends to the Department that it conducts an assessment with a view to providing an appropriate submission to the Minister for consideration.

    DECISION

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

    Tania Flood
    Member

    
    

    ATTACHMENT

    Extract from Migration Regulations 1994

    Schedule 3

    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.