McDonnell (Migration)

[2021] AATA 2651

McDonnell (Migration) [2021] AATA 2651 (11 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John McDonnell

CASE NUMBER:  2004983

HOME AFFAIRS REFERENCE(S):          BCC2020/21253

MEMBER:John Longo

DATE:11 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 11 June 2021 at 12:31pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – application was made more than 28 days after the last substantive visa held by the applicant ceased –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, , 362, 379

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 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 Immigration on 25 February 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The Mr John McDonnell (the applicant) applied for the visa on 23 January 2020. 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 satisfy cl.600.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because at the time he applied for the visa he did hold a relevant substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

4. On 5 May 2021 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 9 June 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. On 11 May 2021 the applicant advised the Tribunal that they wanted to give oral evidence. However, the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. The applicant is a citizen of the Republic of Ireland. He arrived in Australia on 9 January 2019 on a Subclass 601 visa, which ceased on 9 April 2019.  While onshore, the visa applicant applied for a Visitor (Class FA) visitor (Tourist) (Subclass 600) visa on 23 January 2020. This visa was refused by the Department on 25 February 2020. This refusal is the subject of this review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.600.223.

9. That clause provides:

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

   (a)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

   (b)  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:

   (i)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

   (ii)  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.

10. The applicant was in Australia at the time he applied for the visa. He did not hold a substantive visa at that time. The last substantive visa he held was a Subclass 601(Visitor) visa and so it was not one of the visas specified in cl.600.223. The issue is therefore whether the applicant satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001 which is set out in the attachment to this decision.

11. 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 criterion 3001(2).

12. 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 9 April 2019 and the application for a further Visitor visa was made on 23 January 2020.

13. 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.

    DECISION

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

    John Longo
    Member

    
    

    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.