Mahachi (Migration) - [2022] AATA 1815

Mahachi (Migration) [2022] AATA 1815 (25 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Chiratidzo Tamisa Mahachi
REPRESENTATIVE:  Mr Alexander Kaufman (MARN: 0601370)
CASE NUMBER:  2109663
HOME AFFAIRS REFERENCE(S):          BCC2021/452841
MEMBER:Jane Marquard
DATE:25 May 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 25 May 2022 at 3:26pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – relationship ceased – COVID-19 pandemic travel restrictions – enrolment in higher degree studies – multiple previous visas – factors beyond the applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001
CASES
BET16 v MIBP [2016] FCCA 3165
SZRHA v MAIC [2013] FMCA
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant is a Zimbabwean citizen. She first arrived in Australia on 12 June 2009 on a Student (TU 573) visa. Details of her migration history are set out later in this decision.
She applied for the visitor visa the subject of this review on 23 March 2021. She was granted a Bridging Visa C on 25 March 2021. The applicant was granted another Bridging Visa C on 10 December 2021 which remains in effect.
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.
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 review, cl.600.223 requires that if the applicant was in Australia at the time of application and did not hold a substantive visa, she must satisfy Schedule 3 criteria, including criterion 3001.
The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 of Schedule 2 to the Regulations because at the time she applied for the visa she did not hold a relevant substantive visa and she did not satisfy criterion 3001 in Schedule 3 to the Regulations. Criterion 3001 requires that an applicant apply for the visa within 28 days of the expiry of the substantive visa.
The applicant appeared before the Tribunal on 24 May 2022 to give evidence and present arguments in relation to issues arising in the review. The applicant’s representative, Alex Kaufman, was also present at the hearing.
FINDINGS AND REASONS
Opportunity to be heard
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 1815
Decision Date: 25 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by an applicant who did not hold a substantive visa at the time of application. The applicant's relationship had ceased, and the application was lodged during the COVID-19 pandemic travel restrictions. The applicant had also enrolled in higher degree studies and had held multiple previous visas.

The primary legal issue before the Tribunal was whether to affirm the decision to refuse the visa. This involved assessing whether the applicant's circumstances, including factors beyond her control such as the COVID-19 pandemic and relationship breakdown, warranted an exception to the usual visa application requirements, particularly the requirement to apply within 28 days of visa expiry.

The Tribunal acknowledged that the applicant had remained lawful and had attempted to comply with visa requirements. It found the applicant to be credible and noted her history of studying in Australia. However, the Tribunal ultimately affirmed the decision not to grant the visa, despite recognising that the applicant's predicament arose from circumstances including the breakdown of her relationship and the inability to depart Australia due to COVID-19 lockdown measures. The Tribunal's decision was to affirm the refusal of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal notes for the purposes of the applicant’s migration records that at all times she remained lawful and attempted to comply with visa requirements and conditions. She is a credible person, who has studied in Australia, and it was only because of the breakdown in her relationship that she found herself in a position where she applied for a visitor visa outside the 28 day requirement, during the COVID-19 lockdown period when she could not depart Australia. DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa. Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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