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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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

8. The hearing was held by telephone. The Tribunal exercised its discretion to hold the hearing in this manner, taking into consideration the legislative requirement that the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick. The mechanism of review must also be proportionate to the importance and complexity of the matter and promote public trust and confidence in the decision-making of the Tribunal.  The Tribunal also had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  

9. The Tribunal was satisfied that it was reasonable to hold a hearing by telephone, having regard to the nature of this matter, which was essentially a single-issue matter, and the individual circumstances of the applicant - most importantly that in the interests of justice, the matter should be heard expeditiously. There may have been delay to the matter if the hearing was not to be conducted by telephone. The applicant confirmed that she could hear clearly. The Tribunal was satisfied that the applicant was provided with a real opportunity to be heard.

   Findings on cl. 600.223 of Schedule 2 to the Regulations

10. The issue in the present case is whether the applicant meets the requirements of cl. 600.223 of Schedule 2 to the Migration Regulations. For the following reasons, the Tribunal has concluded that the applicant does not satisfy cl.600.223 and that the decision under review should be affirmed.

11. Clause 660.223 provides:

    (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.

12. The applicant confirmed at the Tribunal hearing that she was in Australia at the time she applied for the visa (23 March 2021). She also confirmed that she did not hold a substantive visa at that time as she held a bridging visa, which is not a substantive visa. The last substantive visa she held was a Visitor (Tourist) (Subclass 600) visa, which expired on 14 August 2019, and is not one of the visas specified in cl. 600.223. The issue is therefore whether the applicant satisfies the Schedule 3 criteria.

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 includes the last day when the applicant held a substantive visa, in this case 14 August 2019.

14. In a submission to the Department dated 17 May 2021 the applicant said that she had applied for a partner visa in Australia on 13 August 2019 and when the relationship broke down in January 2021, she was unable to return to Zimbabwe due to the COVID-19 pandemic. She said that she had no other options but to apply for a visitor visa at that time.

15. In submissions to the Tribunal dated 21 May 2022 it was confirmed that the applicant is a Zimbabwean national who completed her post-secondary education in Australia. In 2009 she met an Australia who became her long-term partner and in 2019 they applied for a partner visa. The relationship broke down and she withdrew the partner visa application on 3 April 2021. It was submitted that she was unable to return home due to border closures and (predating the introduction of the 408 Pandemic Stream) she was advised to submit an application for a further stay as a visitor. She did this on 23 March 2021. She made three attempts to get work rights. It was submitted that she was never unlawful, as claimed in the Department’s decision, and therefore she should not have been ‘unfavourably assessed against Schedule 3 Criterion 3001 resulting in the refusal’ and it would have been expected that she would have been assessed against criterion 3003 and 3004. It was submitted that she had substantially complied with the conditions of her visas.

16. The applicant also provided a statement as follows:

    ‘My substantive visa was replaced by a bridging visa after I applied for a partner visa. Unfortunately, that relationship ended quite badly. We tried to make it work but unfortunately the relationship ended. The breakup was quite hard for me as he was a big part of my life having known him for more than a decade, being friends first then turning into something more. Covid, like for most people exacerbated things. It is rampant in my country. Flights home are sporadically cancelled with some airlines cancelling routes to Zimbabwe. I have relatives, family friends and an old school mate who have passed away back in Zimbabwe. My parents have essentially confined themselves in their home for months, only leaving when necessary. The already poorly run, unequipped hospitals are overcrowded and are turning people away. My parents and I thought it necessary for me to stay here until everything settles down, worried about me contracting the virus during travel or when I get back.’

17. At the Tribunal hearing, the applicant was asked if she wished to provide any further submissions in regard to the fact that she had not applied for the visitor visa within the 28 days after the expiry of the substantive visa. She said that she had to end her unhealthy relationship. She was in Queensland at the time and had to withdraw the partner visa. She said that the timing was tricky as it was lockdown and there were no flights at the time. Her then representative advised her that as she was in the middle of her Master’s degree at Bond University, and there were no flights because of the lockdown and flights were being cancelled, that she should apply for a visitor’s visa. At the time there was also a lockdown in Zimbabwe. Under advisement from her lawyer she applied for the visitor’s visa, believing that she would be eligible. She said that she did not apply for a visitor visa within 28 days of the expiry of her last substantive visa, as she had applied for a partner visa which she believed she would be granted. She confirmed that she had never been unlawful and had always complied with visa conditions. Prior to this she had been a student in Australia. She had become ‘locked’ in the country due to the pandemic and had only wanted to remain lawful. She said that the visa refusal was ‘shocking’ to her.

18. Mr Kaufman submitted that the delegate incorrectly stated that the applicant was unlawful, and did not assess Schedule 3 criteria 3003 and 3004, which he should have done if he believed that the applicant was unlawful. He submitted that the Schedule 3 criteria are not mutually exclusive. The Tribunal suggested to the representative at hearing, that as the legislative provisions require an applicant to meet Schedule 3 criteria, if the applicant does not meet Criterion 3001 then there is no need to consider the other Schedule 3 criteria. Mr Kaufmann submitted that he had a different view which is that the criteria are not mutually exclusive.

19. The Tribunal has considered Mr Kaufman’s submissions. Clause 600.22 of Schedule 2 to the Migration Regulations, titled ‘Criteria for Tourist Stream’, states that ‘these criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 600 visa in the Tourist stream’. Clause 600.223 of Schedule 2 to the Migration Regulations is one of those criteria as it falls under the heading of Clause 600.22. Clause 600.223 (2) provides that if the applicant was in Australia at the time of application, and did not hold a substantive visa the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. The use of the word ‘and’ indicates that the legislators intended that applicants who were in Australia at the time of application, and did not hold a substantive visa, satisfy all relevant Schedule 3 criteria, where applicable. Thus, if the applicant does not satisfy Schedule 3 Criterion 3001 she does not meet Clause 660.223(2).

20. The applicant’s migration history is as follows. She first arrived in Australia on 12 June 2009 on a Student (TU 573) visa. This visa ceased on 8 October 2013. She applied for a Student Further Stay (TU 573) visa on 29 September 2013 which was refused on 21 February 2014. The Tribunal, differently constituted, remitted the matter on 31 October 2014. The visa was granted on 9 January 2015 and ceased on 15 March 2016. The applicant was granted a Student (TU 500) visa on 15 June 2016 which ceased on 30 August 2016. The applicant was granted a further student visa on 30 August 2016 which ceased on 30 August 2018. The applicant departed and arrived back onshore a couple of times on this visa. The applicant applied for a Student (TU 500) visa on 29 August 2018 which was granted on 14 November 2018 and ceased on 31 January 2019.  The applicant applied for a Visitor (FA 600) visa on 30 January 2019 and was granted a Bridging Visa A on the same date. The visa was granted on 14 February 2019 and ceased on 14 August 2019.The applicant commenced a Combined Partner (UK 820/BS 801) visa application on 13 August 2019. She was granted a Bridging Visa A on 13 August 2019 which ceased on 8 May 2021. The applicant withdrew the partner application on 3 April 2021.

21. The Tribunal accepts the applicant’s evidence that she applied for a visitor visa outside the 28 day period as it was difficult to leave the country at the time due to COVID-19 restrictions and she had withdrawn her partner visa application due to the relationship breakdown. However, 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 includes the last day when the applicant held a substantive visa. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, for the applicant’s substantive visa ceased on 14 August 2019 and the application for a Visitor visa was made on 23 March 2021

22. The Tribunal accepts that the applicant at all times remained lawful and tried to comply with the law upon advice from a representative. As explained to the applicant at the Tribunal hearing, the criteria are mandatory. In cases relating to time limits for applications for review the courts have held that the Tribunal has no discretion if an application is lodged outside a prescribed time. In SZRHA v MAIC,[1] while the Court accepted the applicant’s application was not lodged in time because of negligence on the part of her migration agent, it held the terms of the Migration Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgement of a review application. Similarly, in BET16 v MIBP[2] the Court considered the situation of an applicant in immigration detention whose review application was not lodged in time due to unsuccessful attempts by a Serco officer to fax the review application to the Tribunal. The applicant stated that he was reliant upon Serco officers for administrative procedures, such as lodging the review application. The Court found that the applicant was left in the same position as an applicant whose migration agent fails to lodge an application within the required time, and held that the application was out of time, and even if that is harsh and significant injustice arises, the statutory provision allows no interference.

    [1] [2013] FMCA (Cameron FM, 14 February 2013). Upheld on appeal: SZRHA v MIAC [2013] FCA 531 (Nicholas J, 16 May 2013).

    [2] [2016] FCCA 3165 (Judge Smith, 14 December 2016) at [20].

23. Although the applicant has made credible submissions about why she did not lodge her application for this visitor visa within 28 days after the expiry of her substantive visa, the Tribunal has no discretion in this matter. While the cases referred to above relate to different provisions, the wording in the relevant provisions are mandatory, ‘the applicant satisfies Schedule 3 criteria 3001’. 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 includes the last day when the applicant held a substantive visa.

24. 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 of Schedule 2 to the Regulations.

25. 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

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

    Jane Marquard
    Member