Monroy Daniels (Migration)

[2021] AATA 2270

Monroy Daniels (Migration) [2021] AATA 2270 (11 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Johan Ricardo Monroy Daniels

CASE NUMBER:  2104273

HOME AFFAIRS REFERENCE(S):          BCC2020/2696934

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 12:27pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of visa application – applicant seeking further studies – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration on 17 March 2021 to refuse to grant Mr Monroy Daniels (the applicant) a Visitor (Class FA) visa under s.65 of the Migration Act 1958.

2. The applicant applied for the visa on 20 November 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 because at the time he applied for the visa he did not hold a relevant substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

4. The applicant gave evidence by way of a telephone hearing on 9 June 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant is a citizen of Colombia. He arrived in Australia on 27 August 2019 as the holder of a TU 500 visa which he applied for offshore on 5 July 2019 and was granted on 31 July 2019.  This visa ceased on 17 May 2020.  While onshore on 30 November 2020, the applicant applied for a Subclass 600 visa. This visa was refused by the Department and is the subject of this review.

6. The applicant stated that due to the lack of information when the pandemic started, he was unsure as to which visa to apply for when his student visa expired. He called the Department but they were not able to give him immigration advice. He did not seek immigration advice here in Australia but spoke to a student counsellor in Colombia who suggested that he could apply for a bridging visa.

7. The applicant stated that he thought that he would be allowed to apply for another visa after being granted the bridging visa and so he applied for a visitor visa as he hoped to be able to travel around Australia and then apply for a student visa to complete further studies. He assumed as the bridging visa allowed him to work and study he could apply for the visitor visa afterwards.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. 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.

11. 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 500 (student) 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.

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).

13. 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 17 May 2020 and the application for a further Visitor visa was made on 20 November 2020.

14. 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

15. 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.