Kamlesh Rani (Migration)

[2021] AATA 2659

Kamlesh Rani (Migration) [2021] AATA 2659 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kamlesh Rani

CASE NUMBER:  2018401

DIBP REFERENCE(S):  BCC2020/1860124

MEMBER:Scott Clarey

DATE:9 June 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 9 June 2021 at 2:38pm

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 does not satisfy criterion 3001–decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 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 Immigration on 10 December 2020 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (Mrs Kamlesh Rani, herein Mrs Rani) applied for the visa on 1 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 Mrs Rani did not satisfy cl.600.223 because at the time she applied for the visa she did not hold a relevant substantive visa and she did not satisfy criterion 3001 in Schedule 3 to the Regulations.

4. Mrs Rani appeared before the Tribunal via teleconference on 3 June 2021. I note that at Mrs Rani’s request, a joint hearing was held in conjunction with her husband’s case (Mr Vijay Kumar, Tribunal case no. 2018403) because both applications are affected by similar issues for similar reasons. The Tribunal was also assisted by, and received evidence from, Mrs Rani’s son (Mr Verna) who is the authorised recipient for both cases. According to the parties, Mr Verna (who lives in Australia) was responsible for organising the visas for his parents. The Tribunal hearing was conducted with the assistance of a Punjabi interpreter. The Tribunal is satisfied that Mrs Rani was given a fair opportunity to give evidence and present arguments.

5. The Tribunal has also had regard to submissions emailed to the Tribunal by Mr Verna on 26 May 2021 in relation to his mother’s case.

   Relevant background

6. Mrs Rani is a 65-year old citizen of India. She first arrived in Australia on 18 June 2013 on a single-entry, Sponsored Family Visitor Class UL subclass 679 visa, granted to her on 21 March 2014, valid until 6 January 2014.  On 6 January 2014, she departed Australia. While offshore, she applied for and was granted a succession of multiple-entry Visitor (Tourist) Class FA subclass 600 visas. The last subclass 600 visa, on which she last arrived on 29 March 2019, was granted on 23 January 2019 and expired on 29 March 2020. This was the last day Mrs Rani held a substantive visa in Australia.

   Tribunal hearing on 3 June 2021

7. At the hearing, the parties confirmed that at the time Mrs Rani applied for the subclass 600 visa under review she was not the holder of a substantive visa. Her last substantive visa (subclass 600 visa) ceased on 29 March 2019. The parties explained to the Tribunal that this was due to a series of events caused by issues relating to the COVID-19 pandemic. The parties claimed that their return flight to India was cancelled the day their visa expired. They claimed that they spoke to a representative from the Department who (they claim) told them words to the effect that they could extend their stay in Australia due to the impact of the pandemic. Mr Verna told the Tribunal that he spoke to the Department on 30 March 2019, the day after he claimed his parents’ flight to India was cancelled. He said that his parents were subsequently granted a bridging visa and that a ‘no further stay’ condition applied to his parents was removed on 9 June 2019. He claimed that he had taken (and followed) advice from the Department throughout this period. Mr Verna told the Tribunal that his parents cared for his children in Australia and that because he was unable to get his parents-in-law into the country at the moment as planned to take over these carer duties, he required his parents to remain here. The Tribunal has had regard to the parties’ explanation for why the application was not lodged prior to 1 July 2020, but notes it has no discretion in considering claimed reasons why an application was not validly made within 28 days of the relevant day. This was explained to the parties at the hearing.

8. For the following reasons, I have concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case whether Mrs Rani 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)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)   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. Mrs Rani was in Australia on 1 July 2020 when she applied for the subclass 600 visa under review. It is not in dispute that she did not hold a substantive visa at that time. The last substantive visa she held was a separate subclass 600 Visitor visa that ceased on 29 March 2020. There is no suggestion that Mrs Rani was the holder of one of the visas specified in cl. 600.223(2)(a). As was explained to her at the hearing, the issue is therefore whether Mrs Rani satisfies the Schedule 3 criteria. The relevant criterion in this case is 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).

12. Mrs Rani’s last substantive visa ceased on 29 March 2020. The application for the subclass 600 visa under review was made on 1 July 2020. On the basis of the evidence before me, I therefore find that Mrs Rani’s application was not lodged within 28 days of the relevant day.

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

    DECISION

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

    Scott Clarey
    Member