Komatireddy (Migration)

[2021] AATA 1719

Komatireddy (Migration) [2021] AATA 1719 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prashanth Reddy Komatireddy

CASE NUMBER:  1927261

DIBP REFERENCE(S):  BCC2019/4229585

MEMBER:Scott Clarey

DATE:24 May 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 24 May 2021 at 17:05pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after holding last substantive visa – cancellation of previous student visa set aside by tribunal – relevant day for current visa is the day the applicant was notified of that decision – applicant was expecting notification from department and was confused about what tribunal’s notification meant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3001(2)(d)(ii)

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 6 September 2019 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 20 August 2019. 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 Mr Komatireddy did not satisfy cl.600.223 because at the time he applied for the visa he did hold a relevant substantive visa and he did not satisfy criterion 3001 in Schedule 3 to the Regulations.

4. Mr Komatireddy appeared before the Tribunal (via teleconference) on 20 May 2021. He was represented in relation to the review by his migration agent. The Tribunal is satisfied that Mr Komatireddy was given a fair opportunity to give evidence and present arguments.

   Background

5. Mr Komatireddy is a 28-year old Indian national. He first arrived in Australia on 5 March 2015 on a Student Class TU subclass 573 visa granted to him on 3 March 2015, valid until 15 March 2017. On 7 March 2017, he applied for a further Student visa and was granted the associated Bridging Class WA subclass 010 valid until 9 March 2017. On 9 March 2017, he was granted a Bridging WB subclass 020 visa valid until 19 April 2017. On 19 April 2017 he was granted his second Student visa valid until 30 September 2018.

6. On 1 May 2018, the Department cancelled Mr Komatireddy’s Student visa. On 2 May 2018, he lodged a review application with the Tribunal in relation to the visa cancellation. On 12 June 2019 the Tribunal (case 1812575, differently constituted) set aside the cancellation decision and remitted it back to the Department for reconsideration. As per  criterion 3001(2)(d)(ii) (and as was discussed with Mr Komatireddy and his representative at the hearing), I find that 12 June 2019 is the relevant day in relation to this application, because Mr Komatireddy’s last substantive visa was cancelled and this was the day when Mr Komatireddy was notified of the Tribunal's decision in relation to that case.   

7. At the hearing, Mr Komatireddy confirmed that confirmed that he was not the holder of a substantive visa on 20 August 2019, the day he lodged the subclass 600 visitor visa application under review. I asked Mr Komatireddy about the circumstances surrounding his visa status around the time he lodged the visitor visa. Mr Komatireddy stated that he was aware he had lodged the application after the 28 day time limit. He said that his student visa had been cancelled due to a fault from the university he was attending at the time. Mr Komatireddy stated that he had appealed this decision to the Tribunal, which set aside the cancellation decision on 12 June 2019. He said that he was subsequently expecting an email from the Department but claimed he never received one. He said that his previous representative had declined to represent him again. He stated that he subsequently received a call from the Department (he thought in early July 2019) telling him he was at that time unlawful. Mr Komatireddy confirmed that he was notified of the set-aside decision on 12 June 2019, but he was confused about what it meant in relation to his visa status.

8. I discussed with Mr Komatireddy and his representative at the hearing that there appeared to be a typo in the delegate’s decision record that erroneously stated that Mr Komatireddy last held a substantive visa on 12 August 2019. I explained to Mr Komatireddy and his representative at the hearing, with reference to the provisions of criterion 3001, that I considered 12 June 2019, the day Mr Komatireddy was notified of the Tribunal’s set aside decision, to be the relevant day in relation to the application under review. I also explained to Mr Komatireddy and his representative that he was unlikely to satisfy criterion 3001, because his application for the subclass 600 visa was lodged beyond the 28 day period. Both Mr Komatireddy and his representative indicated that they understood this. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case whether Mr Komatireddy 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. Mr Komatireddy was in Australia on 20 August 2019 when he applied for the subclass 600 visa under review. It is not in dispute that he did not hold a substantive visa at that time. The last substantive visa he held was a TU subclass 500 (Student) visa that was cancelled on 1 May 2018. There is no suggestion that Mr Komatireddy was the holder of one of the visas specified in cl. 600.223(2)(a). The issue is therefore whether Mr Komatireddy 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). As discussed above (and as was explained to Mr Komatireddy at the hearing), pursuant to 3001(2)(d)(ii), the relevant day in relation to this review is 12 June 2019, the day Mr Komatireddy was notified of the Tribunal’s (as previously constituted) set aside decision in relation to his student visa cancellation.

12. Mr Komatireddy’s application for the subclass 600 visa under review was made on 20 August 2019. On the basis of the evidence before me, I therefore find that Mr Komatireddy’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, Mr Komatireddy 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