LAU (Migration)

[2017] AATA 264

LAU (Migration) [2017] AATA 264 (13 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Po Chi Gi Gi Lau

CASE NUMBER:  1614104

DIBP REFERENCE(S):  BCC2016/2836282

MEMBER:John Billings

DATE:13 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.215 of Schedule 2 to the Regulations.

Statement made on 13 February 2017 at 12:00pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.215 – Total stay of more than 12 months – Exceptional circumstances – Previous Working Holiday visas – Previous student visa

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.215

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 29 August 2016 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, Ms Lau, applied for the visa on 26 August 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case Ms Lau 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.600.215.

4. 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.600.215. That clause provides that there must be exceptional circumstances for the grant of the visa if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months: one or more visitor visas, a Subclass 417 (Working Holiday) visa, a Subclass 462 (Work and Holiday) visa, a bridging visa.

5. The delegate refused to grant the visa on the basis that the Ms Lau did not meet cl.600.215.  The delegate considered that the grant of the visa “would result in [her] staying in Australia for a total period exceeding 12 consecutive months”.  The delegate was not satisfied that there were exceptional circumstances for the grant of the visa.   Ms Lau applied for review on 18 January 2016. 

6. Ms Lau appeared before the Tribunal on 13 February 2017 by telephone from regional Victoria to give evidence and present arguments.

7. Ms Lau was represented in relation to the review by her registered migration agent. The representative did not attend the hearing or make any submissions in writing. 

8. Ms Lau is a 34 year old national of China (Hong Kong Special Administrative Region).  She first arrived in Australia holding a Chinese passport and a Class TZ Subclass 417 Working Holiday visa on 28 November 2012.  She has remained in Australia since then, save that she departed on 29 December 2016 and re-entered on 7 January 2017.  Before the Subclass 417 visa ceased Ms Lau was granted a Bridging A visa.  She was granted a further Subclass 417 visa on 11 October 2013.  Before that visa ceased she was granted a further Bridging A visa.  On 22 December 2014 Ms Lau was granted a Class TU Subclass 572 Student visa that ceased on 27 August 2016.  On the day she applied for the visa now under consideration she was granted a further Bridging A visa.  Ms Lau was granted a Bridging B visa on 16 December 2016. 

9. When Ms Lau applied for the Visitor visa she indicated in the application that she sought an “extension” until 26 November 2016 – three months from date of application.  Her stated reason was for this to explore Australia since she was “not able to travel whilst on Student visa”.  When the Tribunal noted that Ms Lau had been in Australia for longer than she had asked to be permitted, she stated that in October or November last year, while she was travelling within Australia, her employer – a table grape grower - got in touch with her and asked her if she would like to work for him as a production and quality controller.  She agreed.  Ms Lau understands that the employer has sponsored her for a visa to enable this although she could not provide much by way of detail. 

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In considering this case, the Tribunal proceeds in accordance with the President’s Direction Conducting Migration and Refugee Reviews.  The Direction states at paragraph 8.2 that, as a general rule, where the Minister or delegate has made an adverse decision on particular criteria or issues, the Tribunal should restrict its review to those matters.  The Tribunal therefore restricts the review to the question whether cl.600.215 of the Regulations is satisfied.  As the Tribunal noted during the hearing, for Ms Lau to be granted the visa it will ultimately need to be determined whether she genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted. 

12. Clause 600.215 provides as follows:

    (1)  If subclause (2) applies—exceptional circumstances exist for the grant of the visa.

    (2)  This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:

    (a)  one or more visitor visas;

    (b)  a Subclass 417 - Working Holiday visa;

    (c)  a Subclass 462 - Work and Holiday (Temporary) visa;

    (d)  a bridging visa. 

13. The most important points to note in the present case about this provision are, first, the reference to 12 consecutive months and, secondly, the particular type of visas mentioned in paragraphs (a)-(d) of subclause (2). 

14. It is so that Ms Lau held Subclass 417 visas and Bridging visas for about two years from the time she first arrived in Australia in November 2012.  But she then held a Class TU Student visa from December 2014 until August 2016.  The grant of a Visitor visa now for three months would not result in her being authorised to stay in Australia as the holder of one or more of the visas mentioned in cl.600.215 for a total period of more than 12 consecutive months.  The question of “exceptional circumstances” does not arise. 

15. Whatever determination may be made in relation to the other requirements for a Subclass 600 visa, the Tribunal is satisfied that Ms Lau meets the requirements of cl.600.215. 

    DECISION

16. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.215 of Schedule 2 to the Regulations.

    John Billings
    Senior Member