Nguyen (Migration)

[2019] AATA 2610

Nguyen (Migration) [2019] AATA 2610 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Kha Nguyen

CASE NUMBER:  1805321

HOME AFFAIRS REFERENCE(S):           BCC2018/169436

MEMBER:Paul Windsor

DATE:24 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 June 2019 at 9:33am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa at time of application – factors beyond applicant's control – compelling reasons to grant visa – previous visa expired due to ‘carelessness’ – travel and sightseeing in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004

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 14 February 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 January 2018. 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 (the Regulations). Relevantly to this case, they include cl.600.223, which requires that if the applicant was in Australia at the time of the application, and did not hold a substantive visa, the applicant satisfies Schedule 3 criteria 3001, 3002, 3003, 3004 and 3005.

4. Schedule 3 criterion 3004 (annexed to this decision) requires that if the applicant ceased to hold a substantive visa on or after 1 September 1994 the Minister is satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control; and there are compelling reasons for granting the visa.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223 because he did not hold a substantive visa at the time of the visa application and the delegate was not satisfied that this was due to factors beyond his control and also was not satisfied that there were compelling reasons for the grant of the visa.

6. The applicant appeared before the Tribunal on 21 June 2019 to give evidence and present arguments.  

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 this case is whether cl.600.223 is met.  As the applicant was in Australia and did not hold a substantive visa time of application, cl.600.223 requires that he satisfies Schedule 3 criterion 3004.

10. The delegate wrote to the applicant on 16 January 2018 requesting that he comment on whether there were factors outside his control which prevented him from lodging the application while he still held a substantive visa, and whether there were any compelling reasons for the grant of the visa.  The applicant responded on 4 February 2018 indicating that he assumed his previous visa (a class VC subclass 485 Graduate Temporary visa) expired on 24 December 2017 but it actually expired on 14 December 2017.  He indicated that when he realised his visa had expired he sought to apply for a Class TU subclass 500 Student visa but this was deemed invalid.  He indicated he then sought to make a Visitor visa application.  He did not provide any comments regarding whether there were compelling reasons for the grant of the visa.  The Tribunal notes that in his response the applicant commented ‘I sincerely apologise for my carelessness about this matter’.  In relation to the purpose of the visa, the applicant commented in the visa application that ‘I want to travel to Australia for sightseeing and further exploring Australia as well as enjoying the hospitality of friendly locals.’

11. The Tribunal discussed these matters with the applicant at the hearing, asking him whether there were reasons why he thought his failure to make the visa application while he still held a substantive visa was for factors beyond his control and whether there where compelling reasons for granting the visa.  In relation to the latter the Tribunal put to the applicant that the ordinary dictionary meaning of ‘compelling’ indicates that the reasons should be such that they were not able to be refuted or resisted.  In response the applicant apologised for his mistake in thinking his visa ceased on 24 December 2017 rather than 14 December 2017.  He commented that he assumed the visa ceased on 24 December 2017.  He indicated he realised his mistake on 20 December 2017 and, on the advice of friends, tried to apply for a Student visa but that was found to be invalid so he then applied for a Visitor visa.  He commented that he would now like to have the opportunity to travel in Australia, after four years of studying and working in Australia.

12. Noting that when he made the application the applicant indicated he wished to remain in Australia until 28 February 2018 for sightseeing and further exploring of Australia, as well as to enjoy the hospitality of locals, the Tribunal commented that it did not find these to be compelling reasons for the grant of the visa and, noting he had now been in Australia for a further 15 months beyond that date, asked if there were any compelling reason now for the grant of the visa.  The applicant indicated that he wishes to have more time to explore Australia and to relax, including in Hobart and Perth.  He commented that he also wishes to have a valid visa when he departs Australia.

13. The Tribunal finds that the applicant has not advanced reasons that were beyond his control for not holding a substantive when he applied for the Visitor visa.  As discussed with the applicant, in his response to the delegate he apologised for his carelessness in this matter, but his carelessness in not something that was beyond his control.  While the Tribunal appreciates that the applicant may not wish to depart Australia while he is not the holder of a substantive visa, the Tribunal also finds that this reason, and his desire to continue to travel in Australia to see new sights, does not amount to compelling reasons for granting the visa. 

14. Accordingly, the Tribunal finds that the applicant does not meet the requirements of Schedule 3 criterion 3004 and therefore finds that the requirements of cl.600.223 are not met.  The applicant is therefore unable to meet the criteria for the grant of a Visitor (Class FA) visa in the Tourist stream.

    DECISION

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

    Paul Windsor
    Member

    
    

    Annexure – Schedule 3 criterion 3004.

    3004

    If the applicant:

    (a)  ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)  entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)  the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)  there are compelling reasons for granting the visa; and

    (e)  the applicant has complied substantially with:

    (i)  the conditions that apply or applied to:

    (A)  the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)  any subsequent bridging visa; or

    (ii)  the conditions that apply or applied to:

    (A)  the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)  any subsequent bridging visa; and

    (f)  either:

    (i)  in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)  in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)  the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)  if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia