Lu (Migration)

[2022] AATA 1996

Lu (Migration) [2022] AATA 1996 (8 June 2022)

2109945  

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ling Liu

CASE NUMBER:  2109945

HOME AFFAIRS REFERENCE(S):          BCC2021/1251679

MEMBER:Louise Nicholls

DATE:8 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 June 2022 at 10:45am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – technical issues lodging application – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 15 July 2021 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 June 2021. 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 did not satisfy the requirements of criterion 3001 of Schedule 3 to the Regulations, that is, she did not hold a substantive visa when she applied for the visa and she did not apply within 28 days of her last substantive visa ceasing.

4. The applicant appeared before the Tribunal on 27 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

Background

1. The applicant is 63 years old and is a Chinese national, born in Liaoning Province, city of Shen Yang. Her mother and sister are living in China. Her son lives in Adelaide and she is currently staying with her son.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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).

2. 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

1. 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.

2. The application for the Visitor (Class FA) Subclass 600 visa was made on 11 June 2021. The applicant stated that she first arrived in Australia on 23 December 2019 on a 3 month visitor visa.

3. On 29 June 2021 the Department invited the applicant to provide comments in relation to the information that she did not hold a Substantive visa within 28 days of lodging her application for a Tourist Stream (Subclass FA 600) visa.

4. The applicant was informed that there is no provision to grant a Visitor (Tourist) (subclass 600) visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. A Visitor (Tourist) (subclass 600) visa therefore cannot be granted to a person in their circumstances, and she was given an opportunity to withdraw her application. As this letter was sent by email, it was taken to have been received by the applicant on 29 June 2021.

5. On 04 July 2021 the applicant provided a flight ticket itinerary as well as a letter via Immi Account addressing the circumstances which led to the applicant lodging a Visitor (Tourist) (subclass 600) visa application after their last substantive visa had expired. In the letter the applicant stated:

“I made an application through ImmiAccount for a new 408 visa, and nearly finished every
step, but perhaps I forgot to click “submit”, so the application seemed not lodged to system to be processed. Thus, I missed the right timing to submit a new application, which causes lots of unnecessary troubles and explanations to me.”

1. The applicant confirmed that her substantive visa was ceased on 31 January 2021. She agreed that her application for a Visitor (Class FA 600) Subclass 600 visa was made on 11 June 2021 and it was an honest mistake.  

2. The Tribunal finds the application was not made within 28 days of the "relevant day" having regard to the various definitions of that term in criterion 3001(2) being the last day when the applicant held a substantive or criminal visa.

3. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl 600.223.

Conclusion

1. 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

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

Louise Nicholls

Senior Members

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.