Keter (Migration)

[2020] AATA 5216

Keter (Migration) [2020] AATA 5216 (4 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bashir Keter

CASE NUMBER:  1810015

HOME AFFAIRS REFERENCE(S):          BCC2018/1035408

MEMBER:John Longo

DATE:4 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 04 December 2020 at 12:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made within 28 days after last substantive visa held – factors beyond applicant’s control and compelling reasons for granting visa – waiting for university to confirm eligibility for graduation – unable to graduate until paid  outstanding fees – eligibility for graduation not a requirement – technical difficulties prevented making application online – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3001, 3004

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 21 March 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr Keter, applied for the visa on 2 March 2018. 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, Mr Keter applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.223, which requires the visa applicant, if they did not hold a substantive visa, to satisfy the Minister that they met one of 3001, 3003, 3004 and 3005 of Schedule 3 of the Regulations.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223 because they were not satisfied that there were factors beyond Mr Keter’s control which prevented him from lodging his application while holding a substantive visa or that there were compelling reasons for the grant of the visa.

5. Mr Keter appeared before the Tribunal on 18 November 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.223 is met, which states as follows:

   (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.

8. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 of the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003 and 3004.

9. It is not in dispute that Mr Keter, in the present case, did not have a substantive visa at the time of application. As Mr Keter did not enter Australia as the holder of a Subclass 403 visa, the issue in the present case is whether Mr Keter satisfies the Schedule 3 criteria.

   Does the applicant meet the Schedule 3 criteria?

   Criterion 3001

10. 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) of the Regulations.

11. In this case, the relevant day is the day Mr Keter last held a substantive visa, which was 17 February 2018, the day his Student (Class TU) (subclass 500) visa ceased. On 2 March 2018, Mr Keter lodged the visa application which is the subject of this review. As the visa application was made within 28 days of the relevant day, Mr Keter satisfies criterion 3001.

    Criterion 3003

12. Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that Mr Keter was not such a person, and accordingly criterion 3003 does not apply.

    Criterion 3004

13. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that Mr Keter is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that Mr Keter has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by Mr Keter. In addition, the Minister must be satisfied that Mr Keter would have been able to be granted the visa if Mr Keter had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that Mr Keter intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

14. As stated above, the last substantive visa held by Mr Keter was a Student (Class TU) (subclass 500) visa, which ceased on 17 February 2018. The reasons provided by Mr Keter to the Tribunal as to why he lodged his application after his substantive visa had ceased were the same as those provided in writing to the delegate on 18 March 2018.

15. He stated that he was aware of the date his Student (Class TU) (subclass 500) visa was expiring, 17 February 2018. He had completed his studies in a Bachelor of Commerce (Accounting) degree at the University of South Australia at the end of the study period on 5 November 2017 but was unable to graduate. He stated that he was unable to graduate because he had not received his results because he had not cleared some outstanding fees with the university and so was not permitted to graduate until these had been paid and would be required to wait until they were paid.

16. He stated that he was awaiting a letter from the university, to confirm the date that he was able to graduate, prior to lodging the visitor visa application. He stated he received the letter on 16 February 2018 and provided a copy of this correspondence to the delegate, which is before the Tribunal. The Tribunal notes that the letter stated that he is expected to be eligible to graduate at the university’s graduation ceremony on 9 April 2018. The letter does not definitively say that he will be graduating on this date, due to, the Tribunal assumes, Mr Keter having not paid all his outstanding fees. Mr Keter stated that, as at the date of the hearing, he has not been able to graduate because his fees remain outstanding.

17. Mr Keter then stated that he went to see his migration agent on 17 February 2018, the day his visa was expiring, to make the application for the visitor visa, but while they were completing the application the online system commenced updating and they were prevented from completing the process. He stated that his agent attempted to upload the application on 18 February 2018 but was unable to complete the process. His agent then advised him to go to the Department’s office on Monday 19 February 2018, which he did and explained his circumstances.

18. He was issued a bridging visa D on 19 February 2018. He then went to his agent’s office to complete the lodgement of the visa but again it did not work. His agent contacted the Department again on 20 February 2018 to seek technical support and was told that he needed to complete an online application and they would respond within 5–7 days. He went back to the Department’s office on 23 February 2018 and was told to return on 26 February 2018 when his bridging visa expired. He went back to the office on this day and his bridging visa was extended and he was told to post the application. He stated that he then returned to his agent’s office and completed the application which was posted the same day. However, as he had not used the P.O. Box address but rather the street address, the application was returned to the agent. He stated that he posted the application again on 2 March 2018 via Express Post to the correct address.

19. Mr Keter also stated that he has still not graduated as he has not paid his fees. He stated that he wishes to complete a Graduate Diploma in Leadership and Management but has not commenced this course as he was unsure when the application would be heard by the Tribunal and he did not want to be unable to complete these further studies. He stated that he wants to apply for another student visa so he can complete the graduate diploma.

20. Mr Keter stated that these were the factors beyond his control which prevented him from applying for the visitor visa prior to the cessation of his Student (Class TU) (subclass 500) visa. The Tribunal does not accept this was the case. Mr Keter stated that he delayed lodging the application until he had received the letter from the University of South Australia. However, there was no requirement, as part of the visitor visa application, for this letter for Mr Keter to complete the application. Furthermore, there was nothing which prevented Mr Keter from lodging the application for the visa at a date before his substantive visa ceased.

21. While the Tribunal accepts that some of the circumstances which occurred on 17 February 2018 were beyond Mr Keter’s control, they were not circumstances which prevented the application being made while he still held the substantive visa. In other words, there were no circumstances which prevented him from lodging at an earlier date: Mr Keter knew he had completed his studies on 5 November 2017 and that he could not graduate due to the non‑payment of his fees; the next available date for graduation was 9 April 2018 and he knew that this was after his Student (Class TU) (subclass 500) visa expired. There was nothing which could be said was beyond his control to enable him to apply for the visitor visa while he still held his substantive visa.

22. The Tribunal is not satisfied that these were factors outside Mr Keter’s control. The Tribunal is therefore satisfied that the applicant does not meet 3004(c) and he therefore cannot not meet cl.600.223 of Schedule 2 to the Regulations.

    DECISION

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

    John Longo
    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.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.