Munoa (Migration)

[2021] AATA 2484

Munoa (Migration) [2021] AATA 2484 (5 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafael Mari Lorenzo Ramirez Munoa

CASE NUMBER:  2018201

HOME AFFAIRS REFERENCE(S):          BCC2020/1752445

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 10:30am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – factor beyond applicant’s control – waiting for finalisation of student visa application – no compelling reason to waive requirement – 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 1 December 2020 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 15 June 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 the delegate was not satisfied the at the time of the visa application that the applicant met criterion 3001 of Schedule 3 to the Regulations.

5. The applicant appeared before the Tribunal on 3 June 2021 to give evidence and present arguments. It is noted by the Tribunal that the applicant’s brother, Mr Miguel Munoa, also appeared before the Tribunal at the same time in case number 2018198, as both cases were identical and had the same witness, the applicants’ mother, and the same representative.

6. The Tribunal also received oral evidence from the applicant’s mother Mrs Munoa.

7. The applicant was represented in relation to the review by his registered migration agent.

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. According to the delegate’s decision record dated 1 December 2020 provided to the Tribunal by the applicant, the applicant lodged an application for a visitor visa on 15 June 2020. According to the delegate the applicant last held a substantive temporary work 457 visa which ceased on 7 January 2020. On that basis the delegate made a finding that the applicant did not satisfy Schedule 3 criteria in that the applicant has not lodge the application within 28 days of the relevant day.

12. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. In particular the Tribunal has considered a submission dated 27 May 2021 from the applicant’s representative stating that the applicant applied for a subclass 600 tourist visa on 15 June 2020 and prior to this he held a bridging visa B and that his previous substantive visa, a 457 visa, expired on 7 January 2020. It was stated that the applicant came to Australia as a secondary visa holder as a member of the family unit of his mother. It was stated that the family applied for the renewal of their visa with the intention that the applicant would become a chef and so he applied for a student visa to study here.

13. In the submission the applicant’s representative also stated that the applicant failed to satisfy Schedule 3001 as he did not hold a substantive visa within 28 days of lodging his application for a tourist subclass 600 visa. It was also asserted that there were compelling reasons why the requirements of Schedule 3 should be waived.

14. The applicant’s representative further stated that the applicant’s mother who holds a subclass 482 visa, is a general practitioner and works here in Australia, and is considered a critical worker during this time of the COVID pandemic. It was asserted that she will be adversely affected if her son was returned to his home country. It was asserted also that if not for the pandemic the applicant’s application for a student visa would have been finalised in any case.

15. The Tribunal notes that the applicant has also provided various confirmation of enrolments in cookery courses and in a diploma level course in hospitality management which is due to begin on 9 August 2021 and complete on 11 February 2022.

16. At hearing, the Tribunal had a discussion with the applicant who stated that he is studying now and has a student visa application pending and that that was the key reason why his tourist visa application was made some months after his substantive temporary skilled visa expired because he was waiting for his student visa application to be finalised and seeing that it hadn’t been and not wanting to be illegal it was suggested by his mother that he make a visitor visa application. The applicant’s representative on behalf of the applicant stated that the requirements of schedule 3 should be wavered because there were factors beyond the control of the applicant because of the pending student visa application which had not been finalised.

17. The applicant’s mother, on behalf of the applicant, stated that she came here to Australia in 2007 and worked as a general practitioner, that she supports her children here and that she is attempting to achieve permanent residency. She stated that she relies on her children and would not like to see them leave Australia. She also stated that she advised her children to perhaps consider a visitor visa application as she did not want them to be illegal in Australia.

18. The Tribunal had a discussion with the parties regarding this matter noting that the applicant is now 32 years old (and his brother is 28) and as such are clearly adults and able to return back to their home country without their mother if necessary.

19. The Tribunal has also considered the statement by the applicant’s representative that there were factors beyond the control of the applicant in regard to the timing of the substantive visa application in that there was also a student visa application which appeared delayed.

20. The Tribunal has considered this evidence carefully and notes that the applicant’s representative has stated that it was acknowledged by the applicants that they did not meet the 28 day requirement as their last substantive visa, a skilled temporary visa, ceased on 7 January 2020 and they did not make that current substantive visitor visa application until 15 June 2020. The Tribunal has also considered the applicants representative’s statement that there were factors beyond the control of the applicants that justify the waiver of schedule 3 as they had been waiting for their student visa application and it seems to have been delayed. The Tribunal does not find this evidence plausible or credible in this regard. The Tribunal finds that the applicants have a clear obligation to ensure that they make their applications in accordance with the necessary regulations and that the applicants did not provide evidence that they were not able to do that.

21. In regard to the previous statement about the pandemic the Tribunal notes that the pandemic is a worldwide phenomenon and there is now and has been for some time an opportunity for the applicants to return home in accordance with relevant national health protocols.

22. 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).

23. 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 7 January 2020 and the application was lodged on 15 June 2020.

    DECISION

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

    Stephen Witts
    Member