Mois Cruz (Migration)

[2021] AATA 1720

Mois Cruz (Migration) [2021] AATA 1720 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Catalina Javiera Mois Cruz

CASE NUMBER:  2102159

DIBP REFERENCE(S):  BCC2021/156178

MEMBER:David Crawshay

DATE:24 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 May 2021 at 10:30am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after holding last substantive visa – end of previous relationship and intention to apply for partner visa with new partner – told by previous agent that she could apply for new partner visa after receiving visitor visa – genuine and credible witness – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), 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 Immigration on 9 February 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 January 2021. 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 meet cl.600.223 because he did not satisfy Schedule 3 criterion 3001.

4. The applicant appeared before the Tribunal on 21 May 2021 to give evidence and present arguments. The hearing was conducted as a telephone hearing.

5. The applicant was represented in relation to the review by her registered migration agent.

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 cl.600.223 is met. Clause 600.223 provides as follows:

   (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.

8. It is not in dispute that the applicant in the present case was in Australia at the time of application, being 19 January 2021. Therefore, she is required to satisfy cl.600.223 for the grant of the visas.

9. It is also not in dispute that she did not have a substantive visa at the time of application, having instead applied for the present visa while on a Bridging B visa (WB-020). She is therefore unable to satisfy cl.600.223(1) and must satisfy cl.600.223(2).

10. As the applicant’s last substantive visa was not a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream, she satisfies cl.600.223(2)(a).

11. The issue now becomes whether the applicant satisfies cl.600.223(2)(b), which requires her to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

    Criterion 3001

12. 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), as set out in the attachment to this decision and is relevantly the last day when the applicant held a substantive visa.

13. The evidence in front of the Tribunal is that the applicant ceased to hold her last substantive visas following the expiry of her previous New Zealand Citizen Family Relationship (Temporary) visa (UP-461) on 26 February 2020. The present visa application was lodged on 19 January 2021, which was more than 28 days after the relevant day.

14. At hearing, the applicant told the Tribunal that she knew why her visa was refused, but when she applied for the visa it was on the advice of her previous agent. She said that she was stressed when she got the news of the visa refusal. She said that she considered she did not receive the best advice. She said that she was told by her previous agent that she could apply for a partner visa (with her new partner) when she received her visitor visa. She said that even after her visitor visa application was refused, her previous agent told her that she could apply for review and then get more time to apply for a partner visa.

15. The applicant said that she had no idea about criterion 3001 until she consulted a new agent, who told her that there was no discretion involved with the criterion.

16. The applicant told the Tribunal that she did not know how much time she needed to be able to organise everything because she was getting married in early June. She also said that she was very scared because of the COVID-19 situation. She said that she has been here for eight years and her life is here. She said that it is a very unfortunate situation.

17. The Tribunal acknowledges evidence on the Department and Tribunal files that the applicant had experienced troubles stemming from a relationship with her previous partner through whom she was previously a visa-holder as a secondary applicant. The applicant claimed that she was a secondary applicant on a further visa application by her previous partner, and that she withdrew from the application after he returned to New Zealand.

18. The Tribunal notes the evidence of the applicant, whom it found to be a genuine and credible witness. The circumstances she has described certainly evoke sympathy from the Tribunal.

19. However, while the Tribunal notes this evidence and the applicant’s unfortunate circumstances, it considers that the terms of the legislation are clear. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

20. The applicant therefore does not satisfy cl.600.223(2)(b), which is a requirement for the grant of the visa.

    DECISION

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

    David Crawshay
    Member