Lapeyre (Migration)

[2021] AATA 1910

Lapeyre (Migration) [2021] AATA 1910 (28 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Willy Hans Didier Lapeyre

CASE NUMBER:  2100932

HOME AFFAIRS REFERENCE(S):          BCC2020/1860267

MEMBER:Tania Flood

DATE:28 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 28 May 2021 at 2:08pm

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 – international travel restrictions – family members residing in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, PIC 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 11 January 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 June 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 he applied for the visa he did hold a relevant substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant gave evidence by way of a telephone hearing on 28 May 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. The applicant is a citizen of Mauritius. He was granted a Visitor visa on 21 June 2019 and visited Australia on two previous occasions. He last entered Australia on 21 February 2019 on his visitor visa which was due to expire on 21 May 2020. While onshore, he applied for a further Visitor visa on 4 June 2020. On 19 June 2020 he was granted a subclass 050 Bridging visa in connection with that application. His application for a further visitor visa was found to be invalid on 23 June 2020.  On 30 June 2020 he made a valid application for a further Visitor visa.

8. The applicant told the Tribunal that he wanted to obtain a further Visitor visa to remain in Australia lawfully but realised too late that the expiry date of his previous Visitor visa had passed.  He referred to the difficulties associated with international travel during the COVID 19 pandemic and noted that he has other family members residing in Australia.  He requested that his genuine mistake be excused.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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.

12. The applicant 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 600 Visitor visa, which is not one of the visas specified in cl. 600.223. The issue is therefore whether the applicant satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001 which is set out in the attachment to this decision.

13. 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) and in this case is the last day when he held a substantive visa, that being 21 May 2020.

14. The Tribunal has considered the applicant’s oral testimony, however, on the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day. The applicant’s substantive visa ceased on 21 May 2020.  On 30 June 2020 he lodged the visa application which is the subject of this review. 

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

    DECISION

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

    Tania Flood
    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.