KURIAN (Migration)

[2019] AATA 4041

KURIAN (Migration) [2019] AATA 4041 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robichen Vechooparambil KURIAN

CASE NUMBER:  1833753

HOME AFFAIRS REFERENCE(S):           BCC2018/4618398

MEMBER:Moira Brophy

DATE:13 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2019 at 2:24pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa at time of application – Schedule 3 criteria applies – application lodged outside of relevant timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 379A, 379C
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 31 October 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 applied for the visa on 10 October 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 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 visa applicant did not meet cl.600.223 because he was not satisfied the applicant satisfies the Schedule 3 requirements as set out criterion 3004.

4. The applicant appeared before the Tribunal on 12 September 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

6. The applicant is a 30 year old national of India who arrived in Australia on 19 December 2013 as the holder of a Subclass 457 (Temporary Work (Skilled)) visa. The applicant was granted this visa on 12 December 2013 which ceased on 12 December 2017. This Subclass 457 (Temporary Work (Skilled)) visa was cancelled on 26 July 2017. The applicant sought review of that decision and the Tribunal set aside the decision to cancel on 10 September 2018. The applicant lodged this application for a FA600 Visitor – Tourist visa on 11 October 2018. On this date, the applicant held a WE-050 Bridging (Class E) visa. The applicant has held multiple WE-050 Bridging (Class E) visas since his last substantive visa expired. The applicant last held a substantive UC-457 Temporary Business Entry visa on 12 December 2017.

7. In support of this applicant the following documents were provided to the Department :

   ·Commonwealth Bank statement of account of applicant

   ·Decision record of Tribunal’s substitute decision not to cancel applicant’s Subclass 457 visa.

   ·Copy of applicant’s passport

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case whether the applicant Mr Kurian 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)  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:

   (i)  a Subclass 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. Mr Kurian was in Australia at the time he applied for the visa. He did not hold a substantive visa at that time. The last substantive visa he held was a Subclass UC 457 visa and so it was not one of the visas specified in cl. 600.223. The issue is therefore whether Mr Kurian satisfies the Schedule 3 criteria.

11. Mr Kurian’s last substantive visa was cancelled on 26 July 2017. Mr Kurian sought a review of the decision to cancel and that matter came before the Tribunal (differently constituted) on 6 September 2018. On 10 September 2018 Mr Kurian was advised of the Tribunal decision to set aside the decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. Notice of the decision was sent to Mr Kurian at the email address provided by him.  Under section 379C(5) of the Act if the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.  Accordingly the Tribunal finds Mr Kurian was notified of the Tribunal decision on 10 September 2018.

12. Mr Kurian submits schedule 3001(d) applied in his matter and if found he lodged within 28 days of notification then it should then be considered under schedule 3004 as to whether the factors that prevented his lodging were factors beyond his control.

    (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.

13. Accordingly the Tribunal finds Mr Kurian’s last substantive visa ceased on 10 September 2018 and he lodged this application on 10 October 2018.

14. 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). It is the last day the applicant held a substantive visa.

15. 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 Mr Kurian’s substantive visa ceased on 10 September 2018 the day he was taken to have been notified of the Tribunal’s decision and the application for a Visitor visa was made on 10 October 2018.

16. As the visa application was not made within 28 days of the relevant day, Mr Kurian does not satisfy criterion 3001. Therefore, Mr Kurian does not meet the requirements of cl. 600.223. The Tribunal does not have discretion in this matter.

    DECISION

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

    Moira Brophy
    Member