Kuttattuthottathil Paily (Migration)

[2022] AATA 1812

Kuttattuthottathil Paily (Migration) [2022] AATA 1812 (30 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Molly Kuttattuthottathil Paily

CASE NUMBER:  2107109

HOME AFFAIRS REFERENCE(S):          BCC2020/2918314

MEMBER:Bridget Cullen

DATE:30 May 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 30 May 2022 at 5.04pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 after last visa held – applicant and husband applied for waiver of ‘no further stay’ condition – husband’s waiver granted before previous visa ceased but applicant’s not – no discretion to create exceptions to criterion – consent to decision without hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), 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 Home Affairs on 17 May 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 December 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 meet cl 600.223 because the applicant was unable to meet Criterion 3001.

4. On 9 May 2022 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 26 May 2022. On 17 May 2022 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

7. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.

   Does the applicant satisfy the relevant Schedule 3 criteria?

   Criterion 3001

8. 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 set out in the attachment to this decision.

9. The applicant provided information to the Department, and also to the Tribunal, explaining that both she, and her husband, had applied for waiver of the “no further stay” conditions on their visas, on 9 June 2020, a period of some two months before their visitor visas were due to expire, on 17 August 2020. The applicant and her husband were in Australia to visit their daughter and son-in-law.

10. Although the applicant’s husband “no further stay” waiver was granted on 14 July 2020; for whatever reason, the applicant’s waiver request was not processed by the Department in the same expeditious time frame. The Tribunal accepts the written evidence of the applicant that she did follow-up the matter with the Department, but with no result until her son-in-law called on 22 December 2020 and was advised that she was unlawful, as her visa expired.

11. The applicant then applied for a bridging visa, as well as the visitor visa that is the subject of this review.

12. The Tribunal is not privy to the reasons that the Department chose to have different departmental officers process the applicant and her husband’s waiver applications, nor does the Tribunal know why it took so much longer for the applicant’s to be processed.

13. The Tribunal does not have the discretion to create exceptions to criterion 3001 where it is applicable, even in circumstances where it appears possible that lengthy Departmental processing may have been a contributing factor to the applicant’s conundrum.

14. Here, the applicant last held a Visitor (Tourist) (subclass 600) visa on 17 August 2020, which is the “relevant day” for purposes of criterion 3001(2). She then applied for the tourist visa that is the subject of this review on 30 December 2020.

15. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

16. For these reasons, the applicant does not satisfy criterion 3001, and therefore is unable to meet cl 600.223. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed.

    DECISION

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

    Bridget Cullen
    Senior Member