Miao (Migration)

[2021] AATA 2545

Miao (Migration) [2021] AATA 2545 (5 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Siqi Miao

CASE NUMBER:  2104665

HOME AFFAIRS REFERENCE(S):          BCC2020/2772193

MEMBER:Stephen Witts

DATE:5 July 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 05 July 2021 at 10:22am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – student visa ceased – included as dependant in parents’ business visa application, with bridging visas granted – parents’ application withdrawn, but applicant unable to depart due to COVID-19 travel restrictions – intention to apply for further student visa offshore – did not depart before restrictions took effect – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 29 March 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 3 December 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 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, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl. 600.223 because at the time the applicant made the application for the visa the applicant did not meet criterion 3001 in Schedule 3 to the Regulations.

5. The applicant appeared before the Tribunal on 3 June 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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.

9. According to the delegate’s decision record dated 29 March 2021 provided to the Tribunal by the applicant, the applicant last held a substantive visa, that is a student visa, which ceased on 15 March 2019. According to the delegate the applicant lodged an application for a tourist visa subclass 600 on 3 December 2020. On that basis the delegate made a finding that the applicant did not meet Schedule 3 criteria, in particular criterion 3001 in that the application was not lodged within 28 days of the relevant day.

10. According to the delegate the applicant’s migration agent responded to an invitation to comment regarding this refusal stating that prior to her student visa expiry the applicant’s parents applied for 132 visas including her as a secondary applicant and that non substantive bridging visas were then granted to allow her to remain to continue her study in Australia. According to the delegate the applicant’s representative stated that the family withdrew those visa applications but that the applicant was not able to depart due to travel restrictions. According to the delegate the applicant stated that because she was not able to apply for a new student visa while onshore, she decided to apply for a tourist visa.

11. At hearing the applicant stated that she finished her studies in 2019 and that after she finished her graduate degree she wanted to go on to postgraduate studies here in Australia and that she originally thought that perhaps she could do that under her parents’ original visa application, which was subsequently withdrawn. She stated that her parents didn’t realise that when their visa application was withdrawn that that would mean that her secondary application would also lapse. She stated that she thought that she would be able to go on and get a student visa automatically but then realised that she would have to go offshore and apply which she did not want to do. She stated that she would like to renew her student visa because it would allow her to continue her studies here. She stated that she decided to apply for a tourist visa to stay here and wanted to stay here to finish her studies by July 2021.

12. The Tribunal has considered the applicant’s evidence carefully and notes that the applicant has accepted that she did make her visa application well outside the 28-day period as her student visa ceased on 15 March 2019. The Tribunal notes that the applicant has stated that there were problems because of travel restrictions because of the pandemic but also notes that this pandemic is a worldwide event in any case and that she would have had opportunities to return home well prior to it in any case due to her student visa lapsing in March 2019. The Tribunal has considered the applicant’s statement as above regarding her other visa applications and finds that the applicant’s evidence in this regard was not plausible or credible. The applicant seemed to understand that in fact she did have an obligation to make an appropriate visa application in accordance with the regulations.

13. The Tribunal after careful consideration finds that the applicant has not fulfilled the requirements to make her substantive visa application within the timeframe necessary.

14. 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).

15. 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 15 March 2019 and the application was lodged on 3 December 2020.

    DECISION

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

    Stephen Witts
    Member