Kaur (Migration)

[2021] AATA 4258

Kaur (Migration) [2021] AATA 4258 (18 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amandeep Kaur

CASE NUMBER:  2018356

DIBP REFERENCE(S):  BCC2020/1570105

MEMBER:Scott Clarey

DATE:18 August 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 18 August 2021 at 11:12am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa at time of application – 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

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 7 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 applied for the visa on 15 May 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 not hold a relevant substantive visa and she did not satisfy criterion 3001 in Schedule 3 to the Regulations.

4. The applicant was invited to appear before the Tribunal on 16 August 2021 (via teleconference) to give evidence and present arguments. The Tribunal received correspondence via email from the visa applicant prior to the scheduled Tribunal hearing indicating she wished to waive her right to a hearing. The applicant requested a decision be made by the Tribunal ‘on the papers’ on the basis of the documentary evidence before it. The scheduled Tribunal hearing on 16 August 2021 was subsequently cancelled.

5. As the applicant has requested a decision on the papers, the Tribunal has determined to proceed to a decision without taking any further action. This matter has therefore been determined on the evidence available to the Tribunal.

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

   Relevant background

7. The applicant is a 24-year-old citizen of India. She last arrived in Australia on 14 March 2020 on a FA subclass 600 visitor visa valid until 14 April 2020. On 14 April 2020, this visa ceased. As was noted in the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), 14 April 2020 was the last day she held a substantive visa in Australia. I note that (as far as the Tribunal is aware) it is not in dispute that the applicant was not the holder of a substantive visa on 15 May 2020 when the application under review was lodged.   

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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.

10. The applicant was in Australia on 15 May 2020 when she applied for the subclass 600 visa under review. On the evidence before the Tribunal, it is not in dispute that she did not hold a substantive visa at that time. The last substantive visa the applicant held was a FA subclass 600 visa that ceased on 14 April 2020. There is no suggestion that the applicant was the holder of one of the visas specified in cl. 600.223(2)(a). The issue is therefore whether the applicant 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). In applicant’s circumstances, the relevant day is the last day she held a substantive visa.

11. The applicant’s last substantive visa ceased on 14 April 2020 and the application for the subclass 600 visa under review was made on 15 May 2020. On the basis of the evidence before it, the Tribunal therefore finds that Ms Kaur’s application was not lodged within 28 days of the relevant day. 

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

    DECISION

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

    Scott Clarey
    Member