Maan (Migration)

[2022] AATA 758

Maan (Migration) [2022] AATA 758 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yadwinder Singh Maan

CASE NUMBER:  2105038

HOME AFFAIRS REFERENCE(S):          BCC2021/109341

MEMBER:Alan McMurran

DATE:17 March 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 17 March 2022 at 4:42pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – sponsorship application refused – 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 lodged 20 April 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 7 April 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 11 January 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 applicant is a 26 year-old citizen of the Republic of India.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, common criteria include cl 600.223, which is a requirement that the visa applicant satisfies Schedule 3 criteria 3001, 3003, 3004, and 3005.[1]

   [1] Cl.600.223(2)(b)

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223(2)(b) because the applicant did not satisfy Schedule 3 criterion 3001.

6. The applicant appeared before the Tribunal by telephone on 16 March 2022 to give evidence and present arguments. The Tribunal determined this was the most appropriate method for providing a mechanism of review that is fair, just, economical, informal, and quick, and in accordance with its statutory objective. The applicant was ready to proceed and no difficulties were detected by the Tribunal with the hearing process.

7. The applicant was unrepresented for this review. A Punjabi interpreter was also in attendance to assist the applicant for the hearing, as he might require. No issues were detected by the Tribunal arising from language interpretation, and for the most part, the applicant chose to give his evidence in English, where he appeared to be fluent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether cl 600.223 of the Regulations is met, which requires the Tribunal to be satisfied in this instance that the visa applicant, having regard to his last substantive visa, met the criterion 3001.

10. Cl. 600.223 sets out:

    (1)  If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not 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 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.

11. Schedule 3 criterion 3001 provides that the application being considered is validly made and lodged with the Department within 28 days after the relevant day. The ‘relevant day’, in relation to the applicant, is the last day when the applicant held a substantive visa.

12. If an applicant did apply within 28 days from the ‘relevant day’, then he or she must go on to satisfy other requirements. However, if an applicant applied outside the 28-day period the applicant cannot then satisfy Schedule 3 criterion 3001 and cannot meet the requirements of cl.600.223. If this criterion is not, the Tribunal does not need to consider other criteria.

13. The Tribunal has available information and documents from the Department file and from the Tribunal file, Department policy (PAM 3), and the oral evidence from the hearing.

14. There is no evidence before the Tribunal that the last substantive visa the applicant held was a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. Hence, cl.600.223(1) and cl.600.223(2)(a) have no work to do, and the Tribunal’s consideration turns to cl.600.223(2)(b), and whether the Schedule 3 criteria are met.

15. The available evidence from the Department file as confirmed by the applicant at hearing is that the applicant’s last substantive visa was a Visitor (Tourist) (Subclass 600) visa which ceased on 5 October 2019. At the time of lodgment of this review application, the applicant held a bridging visa. The applicant continues to remain lawful in Australia on a current bridging visa, pending the outcome of this application.

16. For the purposes of criterion 3001(2), the ‘relevant day’ in this case is 5 October 2019. The applicant must therefore have lodged his application within 28 days from that day. Policy provides that where the 28^th day falls on a weekend, public holiday, or a bank holiday in any place in Australia where the application could have been made, the criterion is satisfied if the application was lodged on or before midnight on the first day following the 28th day that is not a Saturday, a Sunday or a public holiday or bank holiday.

17. The last day for the applicant to lodge the application in this case was midnight on Monday 4 November 2019. The application was not lodged, however, until received by the Department, according to its records, on 15 January 2021.

18. The Department sent a natural justice letter to the applicant on 24 March 2021 inviting a response. That letter informed the applicant that his last substantive visa had expired on 5 October 2019. The applicant’s then agent responded on 29 March 2019, giving an explanation for delay in lodgement. In essence, the agent’s response recorded that as the applicant did not have another substantive visa application, he had lodged a paper application for another visitor visa.

19. At the hearing, the Tribunal asked questions about the applicant’s response concerning delay. The applicant submitted that he had been working as a supervisor at a Dominos pizzeria. The applicant explained that he had made application for a sponsored visa with Dominos while on his previous Visitor visa.

20. The applicant’s sponsorship via a Labour Agreement was declined in August 2020, and the applicant said he did not discover the fact until November 2020, when his agent told him. He said he was shocked. He said he was told there was ‘adverse information’ as the employer no longer had a manager’s position available for him.

21. The applicant withdrew his related 482 visa application on advice from his agent, rather than having it refused. His agent told him then to bring this application for a further Subclass 600 Visitor visa.

22. The applicant said he did not know and was not told about the 28 day ‘rule’ requirement until November 2020. He said as he ‘did not know the rules’, the agent should have told him when his Visitor visa expired that he needed to bring the application then, and not rely upon the sponsorship, which was taking some time. This was so, notwithstanding the Department had informed the applicant by letter in March that the Labour Agreement had failed, and by which date in any event, any further Visitor visa application could not meet the time requirement. The applicant agreed that he knew his previous visa had ceased and he had placed all his efforts on acquiring the Subclass 482 visa, and while still working for Dominos.

23. The Tribunal informed the applicant that there was no discretion to waive the time limit requirement for bringing the application. The only issue is whether the application had been lodged with the Department within the relevant time period. The Tribunal made no comment on the concerns raised by the applicant about what he had or had not been advised by his representative.

24. The Tribunal is satisfied on the available information and the applicant’s submissions that the application for the visa was not lodged within the requisite 28 day period following the last day on which the applicant held a substantive visa.

25. The Tribunal finds that on the available evidence, the applicant does not meet the Schedule 3 criterion.

    Conclusion

26. For the above reasons the Tribunal is not satisfied that the visa applicant lodged the application with the Department within 28 days from when he last held a substantive visa.

27. Accordingly, the Tribunal finds that criterion 3001 is not met and therefore the requirements of cl 600.223(2)(b) are not met.

    DECISION

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

    Alan McMurran
    Member