Ong Ik Weei (Migration)

[2019] AATA 3934

Ong Ik Weei (Migration) [2019] AATA 3934 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ryan Ong Ik Weei

CASE NUMBER:  1812388

DIBP REFERENCE(S):  BCC2018/1541860

MEMBER:Ian Garnham

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The tribunal affirms the decision under review that the visa applicant does not meet the criteria for a Visitor (Class FA) subclass 600 visa.

Statement made on 13 August 2019 at 4:44pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – not holder of substantive visa at time of application – Schedule 3 criteria – application lodged outside of relevant timeframe – 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 Immigration on 12 April 2018 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 April 2018. The delegate refused to grant the visa on the basis that the visa applicant did not meet criterion cl.600.223 of the Act.

3. The applicant appeared before the tribunal on 13 August 2019 to give evidence and present arguments.

4. The tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant meets cl.600.223 of the Migration Regulations 1994 (the Regulations).

8. It states:

   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 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.

9. In this case, at the hearing, the tribunal worked through the visa applicant’s Movement Details with him and applied the above criterion to his circumstances.

10. On 31/10/2017 the visa applicant was granted a subclass 601 Electronic Travel Authority visa that ceased to have effect on 16/02/2018.  He came to Australia on 16/11/2017.

11. On 05/04/2018 the visa applicant was granted a subclass 030 Bridging C visa.

12. Substantive visas are defined in section 5 of the Act:

    substantive visa means a visa other than:

    (a)  a bridging visa; or

    (b)  a criminal justice visa; or

    (c)  an enforcement visa.

13. This means that the visa applicant last held a substantive visa when his last substantive visa ceased to have effect, on 16 February 2018.  This means he did not hold a substantive visa when the application was made, on 4 April 2018; therefore he must meet subclause 600.223(2).

14. As the visa applicant’s last substantive visa was not a subclass 403 visa he must satisfy the Schedule 3 criteria.

    Does the visa applicant meet the Schedule 3 criteria?

15. Criterion 3001 requires that the visa applicant make a valid visa application within 28 days of the relevant day.  In this case the relevant day is the last day that a substantive visa was held by the visa applicant and this day is 16/02/2018. 

16. The application was made more than 28 days after this date and therefore the visa applicant cannot meet criterion 3001.

17. It follows that he also cannot meet cl.600.223 of the Regulations.

    DECISION

18. The tribunal affirms the decision under review; that the visa applicant does not meet the criteria for a Visitor (Class FA) subclass 600 visa.

    Ian Garnham
    Member