Mohammed Ather (Migration)

[2019] AATA 1807

Mohammed Ather (Migration) [2019] AATA 1807 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khan Yousuf Zai Mohammed Ather

CASE NUMBER:  1727513

HOME AFFAIRS REFERENCE:                BCC2017/3787116

MEMBER:Rosa Gagliardi

DATE:25 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 March 2019 at 5:37pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant did not hold a substantive visa at time of application– applicant does not meet Schedule 3; criterion 3001 – victim of a scam– case meets the Ministerial Intervention Guidelines– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 368C, 368D, 379C

Migration Regulations 1994, Schedule 2, cls 600.223, Schedule 3, 3001, 3003, 3004, 3005

CASES

Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

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 17 October 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 October 2017. 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 (the Regulations). Relevantly to this case, they include cl.600.223, which requires the visa applicant to satisfy Schedule 3 – 3001; 3003; 3004; and 3005.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223(2)(b) because at the time of application the applicant did not hold a substantive visa and the application had not been made within 28 days after the relevant day (within the meaning of subclause (2)), being the last day when the last substantive visa ceased – Criterion 3001.

5. The applicant appeared before the Tribunal on 6 February 2019 to give evidence and present arguments.

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

   RELEVANT LAW

   600.223

   (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.

   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.

7. The applicant lodged an application for an FA600 Visitor – Tourist Stream visa on

   
   

   13 October 2017.  On this date the applicant held a WE-050 Bridging (Class E) visa which has been in effect since 9 October 2017.  A WE-050 Bridging (Class E) visa is not a substantive visa and therefore the applicant must be criterion 3001 of Schedule 3.

8. The applicant last held a substantive TU-572 Student visa on 5 July 2011.  At the hearing the Tribunal explained that given the application for an FA600 Visitor – Tourism Stream visa was lodged more than 28 days after the applicant last held a substantive visa, he does not meet Schedule 3; criterion 3001.

9. Given the circumstances the Tribunal is not satisfied the applicant meets cl.600.223.

   Ministerial intervention

10. The applicant is in an invidious position where he can never meet cl.600.223 because the requirement he lodge the Visitor visa – Tourist Stream, 28 days after he last held a substantive visa is immutable.  He stated at hearing that he was advised to apply for a Tourist visa as a last resort and in order to regularise his status in Australia.  But applying for this Visitor visa, even were he to meet cl.600.223, is futile because the applicant does not genuinely intend to visit Australia.  At hearing he stated that he wanted the Tribunal to restore him to the position he would have been in prior to his difficulties with S & S Migration.

11. It was widely reported that S & S Migration, a migration firm run by Mr Ajjan and Mr Sodhani, used stolen departmental stamps and equipment as part of a scam in which hundreds of overseas workers and students paid large sums to obtain visas to which they were not entitled.[1]

    [1] ‘Visa Fraud Suspects Fled After Wiring $1m Overseas’, The Sydney Morning Herald, Nick McKenzie, Richard Baker, 8 August 2014.

12. The applicant was a victim of the scam in which the agents lodged an application for a Skilled Graduate subclass 485 visa for which he was not entitled and for which he could not meet the criteria.  The applicant claims that he paid his money but was unaware that applying for this visa would set him on a path that would cost him several years while he attempted to regularise his status and sought remedy for the alleged wrong visited upon him by S & S Migration, including appealing at the Migration Review Tribunal (MRT) as it then was.  The applicant has remained in Australia on a series of Bridging visas which have placed, at times, limitations on his ability to work and study and his resources.

13. On 18 August 2017 the Federal Circuit Court of Australia (FCCA) determined that the application in the name of the applicant made on 26 May 2011 was not valid.  The critical ground in the application filed in the FCCA on 7 September 2015, was that “The visa application submitted to the first respondent’s Department purportedly in the applicant’s name on 26 May 2011 was submitted without the applicant’s authority and therefore not on his behalf”. 

14. The FCCA decided that “S&S Migration’s lodgement of the purported visa application both defrauded the applicant and stultified the second respondent’s (MRT’s) process in so far as the second respondent was called upon to review a decision which on a proper analysis had no foundation: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17”.

15. At hearing the applicant stated that the effect of the decision made in August 2017 by the FCCA should put him in the position he was in prior to S & S Migration lodging the unmeritorious application in his name.  Unfortunately, that is not possible as the applicant must meet the criteria at the time of application and the Tribunal has no discretion to void the fraud of the agents.  In practical terms the FCCA decision in the applicant’s favour is of no utility to him. 

16. The applicant naturally feels aggrieved that he has been vindicated by the decision of the FCCA but is left without any further visa pathways to continue studying or seek other viable avenues of remaining lawfully after waiting so long to seek redress.  In the applicant’s words, “I have wasted so much of my life with this issue”.   The applicant also appeared to be suffering from significant mental stress and was at a loss as he did not wish to consult migration agents who, if they were reputable, are costly, and besides he had felt let down by S & S Migration was difficult to trust agents generally.

17. As explained to the applicant at hearing only the Minister can substitute a decision favourable to the applicant even though he did not meet the requirements of the visa class.  The Tribunal is of the opinion that the applicant’s circumstances were not anticipated by the migration regulations and the applicant is the subject of unintended consequences of the migration process.  At the least, the circumstances the applicant finds himself in amount to unfairness not brought about by his own actions, and the result of the applicant having lost an opportunity to pursue a legitimate migration pathway, could be seen as unreasonable as per the relevant Ministerial Guidelines.

18. The Tribunal is supportive of this case in the event the Minister is inclined to consider the case for Ministerial Intervention and it is found that the case meets the Ministerial Intervention Guidelines.

    CONCLUSION

19. As far this application for review goes, the Tribunal unfortunately finds that the applicant is unable to meet the criteria for the grant of a Visitor – Tourist Stream visa and must affirm the decision because the Tribunal is not satisfied that the applicant meets cl.600.223.

    DECISION

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

    Rosa Gagliardi
    Member