Nguyen (Migration)

[2021] AATA 2546

Nguyen (Migration) [2021] AATA 2546 (5 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Be Nguyen

CASE NUMBER:  2102480

HOME AFFAIRS REFERENCE(S):          BCC2020/2274878

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 10:24am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – first application, made within time, invalid – second application made out of time, knowing requirements not met – unwillingness to travel during coronavirus pandemic, and wish to stay for newborn grandchild – 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 26 February 2021 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 8 September 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 that at the time the applicant applied for the visa that the applicant met criterion 3001 in Schedule 3 to the Regulations.

5. The applicant appeared before the Tribunal on 3 June 2021 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the applicant’s daughter, Miss Pham.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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 26 February 2021 provided to the Tribunal by the applicant, the applicant lodged an application for a subclass 600 visitor visa on 8 September 2020. According to the delegate the applicant last held a substantive subclass 600 tourist visa on 13 May 2020. According to the delegate it made a finding that the applicant did not meet Schedule 3 criterion, in particular criteria 3001 in that the applicant did not lodge the application within 28 days of the relevant day.

12. According to the delegate it informed the applicant that there was no provision to grant a tourist visa to a person who applies for the visa more than 28 days after the last substantive visa ceased. According to the delegate the applicant stated in a response to an invitation from the delegate to comment that she entered Australia on 12 February 2020 and that her visa was due to expire on 12 May 2020 but that she was not able to return to her home country because of the pandemic and so applied for a new visa.

13. At hearing, the applicant’s daughter, on behalf of the applicant, who wanted her daughter to represent her, stated that her mother arrived in Australia in February 2020 but because of the pandemic decided not to return home in May 2020 and that in April 2020 she (the applicant’s daughter) filled the forming in online on behalf of her mother which the department subsequently informed the applicant (and her daughter) that the application was invalid. The applicant’s daughter stated that she received advice about this and decided to appeal the decision not to grant the visa application. She also stated that because of the pandemic it is not safe for her mother to return home and also that she has just had a baby and wants her mother to stay with her.

14. The Tribunal has considered this evidence carefully and notes that the applicant has stated that she does not wish to return home because of the pandemic. The Tribunal has considered this matter and does not accept this evidence as being relevant to this case. The pandemic is a worldwide event and the applicant has had opportunities now for some time to return home and she has not taken up these opportunities. It is also noted by the Tribunal that the applicant has stated that she wishes to stay here in any case to be with her family and live with her daughter’s family.

15. The Tribunal has also considered the applicant’s evidence regarding her statement that she and her daughter filled the form in online in April 2020 and has considered this matter carefully. The Tribunal finds that the applicant’s evidence in this regard was not plausible or credible. The Tribunal finds that the applicant knew that her visa application that she said she made in April was an invalid one and that therefore she did not meet the requirements to have lodged (and had the department accept) the application within the 28 day period of the cessation of her substantive visa on 13 May 2020. The applicant also acknowledged that she did not make an application acceptable to the Department until 8 September 2020.

16. 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).

17. 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 13 May 2020 and the application was lodged on 8 September 2020.

18. DECISION

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

    Stephen Witts
    Member