NGUYEN (Migration)

[2019] AATA 3223

NGUYEN (Migration) [2019] AATA 3223 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pham Anh Thu NGUYEN

CASE NUMBER:  1720161

HOME AFFAIRS REFERENCE(S):          BCC2017/2763929

MEMBER:Mary Urquhart

DATE:10 April 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 10 April 2019 at 12:30pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – applicant must hold a relevant substantive visa – application invalid – last substantive visa ceased – application not lodged within 28 days of the relevant day – impact of visa refusal – compassionate circumstances – referred for Ministerial Intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Additional criteria 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 16 August 2017 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 2 August 2017. 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.

4. The delegate refused the visa application because the applicant did not satisfy cl.600.223 (2) (b) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant applied for the visa more than 28 days after he last held a substantive visa and did not satisfy criterion 3001 of Schedule 3 to the Regulations.

5. The applicant Ms Pham Anh Thu Nguyen appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thu Hien Nguyen the applicant’s sister in law. ..

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

7. The Tribunal refers the matter to the Department for consideration by the Minister pursuant to s.351 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a 24 year old single National of Vietnam. She first came to Australia aged 17 in 2012 on a Student visa. She successfully completed a bachelor of Commerce degree at Deakin University graduating in August 2017. She has one married brother living in Australia. He and his wife operate a successful on line florist business. Her brother is an Australian citizen and has two infant children.

9. The applicant’s parents and 1 other sibling live in Vietnam. The evidence is that the applicant intends returning to Vietnam to use her qualifications in Commerce to help grow her parents business.

10. The issue in this case is whether cl.600.223 (2) (b) is met, which requires the applicant to satisfy, amongst other things, Schedule 3 criterion 3001.

11. The Tribunal explained at the hearing that it had no discretion in the consideration of the cl.600.223 issue for the refusal of the applicant’s visa.

12. The applicant’s last substantive visa was due to expire on 30 July 2017.  On 28 July 2017 the applicant lodged an application on line and paid by BPay. The application was accepted however on 31 July 2017 the applicant received an email from Immigration advising her the application was invalid. She contacted the Department of Immigration immediately. She was then advised to lodge her application again via post to the Adelaide office. However the applicant realized that to post the application would take time and so she again lodged on line. She lodged the further application and again paid by BPay. Due to the payment being made on a Sunday it was not processed until 2 August 2017 at which time the applicant’s last substantive visa had ceased.

13. In the circumstances of this case, criterion 3001 requires that the application for the visa must have been lodged no more than 28 days after the applicant's last substantive visa ceased.

14. Based on information in the Department file and the delegate's decision record the Tribunal finds that the applicant's last substantive visa ceased on 30 July 2017.  The Tribunal also finds that the applicant made the current visa application on 2 August 2017. which is more than 28 days after his last substantive visa ceased.

15. The Tribunal finds that the applicant does not meet Schedule 3 criterion 3001 and, therefore, he does not satisfy cl.600.223 (2) (b). Accordingly, he does not satisfy the criterion for the grant of the visa.

16. At the hearing the Tribunal  heard evidence from the applicant and her sister in law about the circumstances leading to the applicant being out of time; the effect on her future study and the impact on future travel opportunities of  her having been refused a Visitor visa.

17. The applicant explained that she was very concerned about having an immigration record that showed she had been refused a visa. She was concerned about the impact of this on her future employment opportunities, visits to Australia and all overseas travel.

18. The Tribunal notes the applicant has an excellent immigration record but for the circumstances of this application.

19. The applicant’s sister in law gave evidence of the emotional strain on the applicant and of the impact the visa refusal would have should the applicant wish in the future to engage in any higher studies.

20. The Tribunal discussed with the applicant referral to the Department for consideration by the Minister pursuant to s.351 of the Act which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal indicated that certain guidelines have been issued in regard to the minister’s discretion.

21. The Tribunal records it found the applicant and witness to be open and straightforward in their evidence. The Tribunal found the applicant and witness to be witnesses of truth and their oral evidence to be reliable.

22. The Tribunal has decided to bring this matter to the Minister's attention as it considers that the circumstances of this case exhibit the following grounds:

    ·Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case; and

    ·Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognize would result in serious, ongoing and irreversible harm and continuing hardship to the person;

23. After careful consideration of the applicant’s evidence and the Ministerial guidelines relating to the discretionary power set out in the Department's Procedures Advice Manual (PAM3) the Tribunal refer the matter to the Department for the Ministers’ consideration at his discretion.

    DECISION

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

    Mary Urquhart
    Member