PANDYA (Migration)

[2022] AATA 1396

PANDYA (Migration) [2022] AATA 1396 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pratibha Diveshwar PANDYA

REPRESENTATIVE:  Mr REZA AEIN (MARN: 0955595)

CASE NUMBER:  2105858

HOME AFFAIRS REFERENCE(S):          BCC2021/190292

MEMBER:Joseph Lindsay

DATE:22 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Class FA Subclass 600 Visitor visa.

Statement made on 22 April 2022 at 11:34am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 16 April 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 1 February 2021. The applicant attended the Tribunal by audio on 21 April 2022 to give evidence and present arguments. The applicant was assisted by an interpreter. The applicant’s appointed representative also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the applicant meets the requirements of cl.600.223 of the Regulations. Cl.600.223 provides that;

   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:  (Tribunal emphasis)

   (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. (Tribunal emphasis)

5. The Tribunal notes that the applicant provided to the Tribunal a copy of the decision from the Department dated 16 April 2021, and she indicated that that information in the decision record was correct. The applicant made admissions that she lodged an application for an FA600 Visitor- Tourist Stream visa on 1 February 2021 and she last held a substantive Tourist Stream (FA 600) visa on 4 August 2020.

6. The Tribunal also spoke with the applicant’s son, Mr Kunal Dhirenkumar Joshi, as well as the representative in respect to the written submissions he provided. In the hearing, the representative conceded that the applicant did not comply with criteria 3001 and that the applicant’s circumstances did not satisfy Schedule 3. The Tribunal considered the “Notification of approval of a request for waiver of no further stay condition 8503” dated 25 June 2020. However, the letter is clear that the expiry date of the visa remained the same.  

7. The Tribunal has also considered the post hearing submissions from the representative, in which he referred to the decision of Daljeet Kaur (Migration) [2022] AATA 777 (14 March 2022).

8. In his submissions, the representative indicated that the Tribunal in the case of Daljeet Kaur (Migration) found that Schedule 3 criteria could be satisfied if, in the event that condition 3001 was not satisfied, the applicant satisfied condition 3004.

9. The Tribunal has considered this submission from the representative and, respectfully, does not accept that the representative’s submission is a correct interpretation of the legislative intent of Schedule 3. As indicated above, Cl.600.223(2)(b) states: “the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.” Cl.600.223(2)(b) clearly requires that all of the criteria, including 3001, 3003, 3004 and 3005 must be satisfied (Tribunal emphasis). Cl.600.223(2)(b) does not state “or, if not.”

10. In consideration of the above, the Tribunal accepts that the applicant applied for the Class FA Subclass 600 Visitor visa on 1 February 2021, which is not within 28 days after the last day she held a substantive visa on 4 August 2020, and she therefore does not satisfy Criterion 3001.  Accordingly, the Tribunal finds that the applicant does not meet cl.600.223 and is therefore unable to meet the criteria for the grant of the Class FA Subclass 600 Visitor visa.

11. In balancing the above circumstances, whilst the Tribunal has sympathy for the applicant and the difficulties posed by her circumstances, the Tribunal has no discretion in this matter as she clearly does not meet a mandatory requirement for the grant of the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Class FA Subclass 600 Visitor visa.

    Joseph Lindsay
    Member