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

1. 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).

2. The visa applicant is a man from India. He first arrived in Australia on 26 May 2009.

3. 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.

4. 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.

5. 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.

6. 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

7. 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 also had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  

8. The Tribunal was satisfied that it was reasonable to hold a hearing by telephone, having regard to the nature of this matter, which was essentially a single-issue matter, and the individual circumstances of the applicant - most importantly that in the interests of justice, the matter should be heard expeditiously. There may have been delay to the matter if the hearing was not to be conducted by telephone. The applicant confirmed that he could hear clearly. The Tribunal was satisfied that the applicant was provided with a real opportunity to be heard.

   Findings on cl 600.223 of Schedule 2 to the Regulations

9. The issue in the present case is whether the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations. For the following reasons, the Tribunal has concluded that the applicant does not satisfy cl 600.223 and that the decision under review should be affirmed.

10. Clause 660.223 provides:

    (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.

11. The applicant confirmed at the Tribunal hearing that he was in Australia at the time he applied for the visa (26 November 2021). He also confirmed that he did not hold a substantive visa at that time as he held a bridging visa, which is not a substantive visa. The last substantive visa he held was a Vocational Education and Training Sector (Subclass 572) visa, which expired on 25 April 2011, and is not one of the visas specified in cl 600.223. The issue is therefore whether the applicant satisfies the Schedule 3 criteria.

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 includes the last day when the applicant held a substantive visa, in this case 25 April 2011.

13. On 8 December 2021, the applicant was invited to make submissions to the Department. On 15 December 2021 the applicant submitted that he was not aware of his visa status and believed that it would renew itself. He said that he could not return to India due to the COVID-19 pandemic.He said that at the time he did not have any knowledge about his visas. He said only later he came to know that his visa was not current and he had to apply for the visa because of the COVID-19 pandemic.

14. At the Tribunal hearing he was asked if he wished to make any further submissions. He stated that it was not safe to leave Australia, and so he applied for a visitor visa. He said that he did not want to leave his wife alone in Australia.

15. The Tribunal questioned the applicant about why he remained unlawfully in Australia for long periods. The applicant’s migration history is as follows: He was granted a Student (Offshore) (TU 572) visa on 18 May 2009 and arrived on 26 May 2009. He departed on 9 January 2011 and returned on 5 February 2011. The visa ceased on 25 April 2011. On 26 April 2011 the non-compliance notice was finalised as the visa had ceased. The applicant was then onshore unlawfully from 25 April 2011 to 15 September 2011 when the applicant commenced and was granted a Bridging Visa E. This visa ceased on 29 September 2011. The applicant was then onshore unlawfully from 29 September 2011 until 5 January 2021 when he was granted a Bridging Visa E.

16. Asked why he did not attempt to regularise his visa status when he became unlawful, the applicant said that he has now consulted with agents who told him that applying for a visitor visa was his only option. He was asked why he did not consult with the Department or agents from 2011 to 2021 and find out how to regularise his visa. He said that he ‘did not have any knowledge’ and he did ask his friends. He said that his passport expired, and he did not know what to do about it. He said that someone told him to apply for a bridging visa and then a passport. He said that he wanted one chance to ‘do good things’. He said that at the moment because of COVID-19 ‘it is not good to go overseas’ so he wants to stay in Australia. He said that he ‘did wrong things in the past’ and does not know how to explain himself.

17. The Tribunal has considered the applicant’s submissions but notes that lack of knowledge about visa status is not relevant to the question of whether he meets the relevant provision. Clause 600.22 of Schedule 2 to the Migration Regulations, titled ‘Criteria for Tourist Stream’, states that ‘these criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 600 visa in the Tourist stream’. Clause 600.223 of Schedule 2 to the Migration Regulations is one of those criteria as it falls under the heading of Clause 600.22. Clause 600.223 (2) provides that if the applicant was in Australia at the time of application, and did not hold a substantive visa the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. The use of the word ‘and’ indicates that the legislators intended that applicants who were in Australia at the time of application, and did not hold a substantive visa, satisfy all relevant Schedule 3 criteria, where applicable. Thus, if the applicant does not satisfy Schedule 3 Criterion 3001 he does not meet cl 660.223(2).

18. 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 includes the last day when the applicant held a substantive visa. 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 25 April 2011 and the application for a Visitor visa was made on 26 November 2021.

19. As explained to the applicant at the Tribunal hearing, the criteria are mandatory. In cases relating to time limits for applications for review the courts have held that the Tribunal has no discretion if an application is lodged outside a prescribed time. In SZRHA v MAIC,[1] while the Court accepted the applicant’s application was not lodged in time because of negligence on the part of her migration agent, it held the terms of the Migration Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgement of a review application. Similarly, in BET16 v MIBP[2] the Court considered the situation of an applicant in immigration detention whose review application was not lodged in time due to unsuccessful attempts by a Serco officer to fax the review application to the Tribunal. The applicant in that case stated that he was reliant upon Serco officers for administrative procedures, such as lodging the review application. The Court found that the applicant in that case was left in the same position as an applicant whose migration agent fails to lodge an application within the required time, and held that the application was out of time, and even if that is harsh and significant injustice arises, the statutory provision allows no interference.

    [1] [2013] FMCA (Cameron FM, 14 February 2013). Upheld on appeal: SZRHA v MIAC [2013] FCA 531 (Nicholas J, 16 May 2013).

    [2] [2016] FCCA 3165 (Judge Smith, 14 December 2016) at [20].

20. While the cases referred to above relate to different provisions, the wording in the relevant provisions are mandatory, ‘the applicant satisfies Schedule 3 criteria 3001’. 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 includes the last day when the applicant held a substantive visa.

21. 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

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

    Jane Marquard
    Member