Nalini Kumari (Migration)

[2022] AATA 1398

Nalini Kumari (Migration) [2022] AATA 1398 (19 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nalini Kumari

REPRESENTATIVE:  Miss Bina Shah (MARN: 0848531)

CASE NUMBER:  2108509

HOME AFFAIRS REFERENCE(S):          BCC2021/432173

MEMBER:Sheridan Lee

DATE:19 May 2022

PLACE OF DECISION:  Melbourne

DECISION:Decision under review affirmed

Statement made on 19 May 2022 at 10:04am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made more than 28 days after last substantive visa held – son’s delay in submitting application due to business and family reasons – no discretion to consider circumstances – 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 29 June 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 16 March 2021. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.600.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal via telephone on 18 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, Mr Shivendraloke Singh. The applicant was represented in relation to the review. The hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. On 16 March 2021, Mrs Kumari applied for a Visitor (Tourist) (Subclass 600) visa. At the time, she did not hold a substantive visa.

6. Because Mrs Kumari did not hold a substantive visa on the day she applied for the current Visitor visa, cl. 600.223 (2)(b) of Schedule 2 to the Regulations required her to satisfy a number of criteria, which are set out in Schedule 3 of the Regulations: 3001, 3003, 3004 and 3005.

7. Relevantly, criteria 3001 required that the application was made within 28 days of the last day Mrs Kumari held a substantive visa. Clause 600.223 and criteria 3001 are set out in full as an annexe to this decision. Departmental records show that the last day Mrs Kumari held a substantive visa was 26 December 2020. As such, the application was not validly made within 28 days of when she last held a substantive visa.

8. On 12 May 2022, the applicant’s son and representative provided statements in support of the application. Both statements acknowledged that the application was not made within the necessary time frame and set out a number of contributory factors.

9. At the Tribunal hearing, Mr Singh confirmed that the dates outlined above were accurate. He highlighted that his mother had travelled in and out of Australia on a number of occasions and never overstayed in the past. He outlined that there is no extended family in India to help care for his mother during the COVID-19 pandemic.

10. I accept that Mr Singh was assisting his mother to complete her application and the task was one amongst many competing interests. I understand that he was busy with a work contract and dealing with deaths close to the family. I accept that the delay in lodging the Visitor visa application was a genuine mistake.

11. Nevertheless, as discussed with Mr Sing and Mrs Kumari at the hearing, in circumstances where the Visitor visa application is made more than 28 days after the expiration of the most recent substantive visa, there is no discretion for the Tribunal to consider the circumstances of the delay.

12. As such, I must find that the applicant does not satisfy criteria 3001 for the purposes of cl.600.223(2)(b) of Schedule 2 of the Regulations.

    DECISION

13. The decision under review is affirmed.

    Sheridan Lee
    Member

    
    

    ANNEXE 1

    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.