Jora Singh (Migration) - [2022] AATA 2667

Jora Singh (Migration) [2022] AATA 2667 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jora Singh
CASE NUMBER:  2200894
HOME AFFAIRS REFERENCE(S):          BCC2021/2301912
MEMBER:Jane Marquard
DATE:14 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 14 June 2022 at 11:15am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa – Schedule 3 criteria – application lodged outside of relevant timeframe – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3001
CASES
BET16 v MIBP [2016] FCCA 3165
SZRHA v MIAC [2013] FCA 531
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 10 January 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant is a man from India. He first arrived in Australia on 26 May 2009.
He applied for the visa on 26 November 2021. 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 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 review, cl 600.223 requires that if the applicant was in Australia at the time of application and did not hold a substantive visa, he must satisfy Schedule 3 criteria, including criterion 3001.
The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the applicant did not satisfy cl 600.223 of Schedule 2 to the Regulations because at the time he applied for the visa he did not hold a relevant substantive visa and he did not satisfy criterion 3001 in Schedule 3 to the Regulations. Criterion 3001 requires that an applicant apply for the visa within 28 days of the expiry of the substantive visa.
The applicant appeared before the Tribunal on 8 June 2022 to give evidence and present arguments in relation to issues arising in the review.
FINDINGS AND REASONS
Opportunity to be heard
The hearing was held by telephone. The Tribunal exercised its discretion to hold the hearing in this manner, taking into consideration the legislative requirement that the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick. The mechanism of review must also be proportionate to the importance and complexity of the matter and promote public trust and confidence in the decision-making of the Tribunal. The Tribunal…

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.

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Details

Case: [2022] AATA 2667
Decision Date: 14 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Visitor (Class FA) visa, subclass 600 (Visitor), Tourist stream. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied Schedule 3 criteria, specifically criterion 3001, which relates to applications lodged outside a relevant timeframe. This criterion was relevant because the applicant was not the holder of a substantive visa at the time of application.

The Tribunal found that the visa application was not made within 28 days of the relevant day. Consequently, the applicant did not satisfy criterion 3001. As a result, the applicant failed to meet the requirements of clause 600.223 of Schedule 2 to the *Migration Regulations 1994* (Cth).

The Tribunal affirmed the decision not to grant the applicant 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

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Decision

Reasons for decision

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 of Schedule 2 to the Regulations.DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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