Patel (Migration)

[2021] AATA 2211

Patel (Migration) [2021] AATA 2211 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Daxaben Hasmukhbhai Patel

CASE NUMBER:  2102586

DIBP REFERENCE(S):  BCC2020/1979761

MEMBER:Joseph Lindsay

DATE:1 June 2021

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 1 June 2021 at 9:20am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – Schedule 3 criterion – applicant claimed an earlier date of application – applicant’s husband’s application was accepted – application fee was not paid due to inadvertent error – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 47, 65
Migration Regulations 1994, Schedule 2, cl 600.233; 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 22 February 2021 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 27 July 2020. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.600.223, because she did not hold a substantive visa at the time of application and did not satisfy Schedule 3 criterion 3001 (cl.600.223(2)(b)).  The applicant provided the Tribunal with a copy of the delegate’s decision record.

3. The applicant attended the Tribunal by audio on 24 May 2021 to give evidence and present arguments. The applicant’s daughter and son in law also participated as witnesses. The Tribunal hearing was conducted with the assistance of an interpreter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies Schedule 3 (Additional Criteria Applicable to Unlawful Non-Citizens and Certain Bridging Visa holders) criterion 3001, which applies in this case because her circumstances enliven cl.600.223(2)(b).  This is because the applicant did not hold a substantive visa at the time she applied for the Visitor (Class FA) Subclass 600 visa. 

6. In the hearing, the Tribunal noted that the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal spoke about the information in the delegate’s decision. The delegate’s decision record indicates that:

   a.when the applicant applied for the Visitor (Class FA) Subclass 600 visa on 27 July 2020 she was the holder of a WA-010 Bridging (Class A) visa, which is not a substantive visa;

   b.the applicant last held a substantive FA600 visa on 13 June 2020;

   c.there is no provision to grant the visa to a person who applies for the visa more than 28 days after their last substantive visa ceased.

7. In the hearing, the Tribunal received evidence that the applicant did make application for the visa on 28 April 2020, but that it was on 21 July 2020 that the applicant received notification from the Department that the visa application was invalid. Supporting documentary evidence was provided to the Tribunal.

8. The Tribunal received evidence that the applicant made a further application for the visa on 21 July 2020, but that it was on 23 July 2020 that the applicant received notification from the Department that the visa application was invalid. Supporting documentary evidence was provided to the Tribunal.

9. It was submitted that a paper-based application had to be submitted instead of an electronic application, and that it was only because of a time delay that the paper-based application was ultimately received by the Department on 27 July 2020 – outside the 28-day period.

10. The Tribunal also received evidence that the applicant’s husband made an electronic application for the same visa, in the same manner as did the applicant, but this application was accepted and his visa was granted on 22 June 2020. Supporting documentary evidence was provided to the Tribunal.

11. It was suggested that the reason why the applicant’s visa was not initially accepted was because an error was made on the form and an application fee was not paid, whereas for the applicant’s husband an application fee was paid. It was suggested that the failure to pay the application fee was simply an inadvertent error, and not intentional. 

    Analysis and findings

12. In the applicant’s circumstances as someone who was in Australia at the time of application and did not hold a substantive visa, she must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.  Criterion 3001 requires that the application for the Visitor (Class FA) Subclass 600 visa was validly made within 28 days after the ‘relevant day’, which in the applicant’s circumstances (as someone who ceased to hold a substantive visa after 1 September 1994) is the last day when she held a substantive visa.

13. The Tribunal accepts that:

    a.the applicant last held a substantive visa (a Class FA Subclass 600 Visitor visa) on 13 June 2020.

    b.the applicant did apply for the Visitor (Class FA) Subclass 600 visa on 28 April 2020, but this application was invalid due to the visa application fee not being paid.

    c.the applicant received notification of the invalid visa application on 21 July 2020 but this application was also invalid.

    d.the applicant then lodged a paper-based application for the Visitor (Class FA) Subclass 600 visa which was received by the Department on 27 July 2020.

14. The Tribunal accepts that the applicant made errors in the application process. The Tribunal accepts that the applicant’s husband’s visa application did not have errors and was successful. The Tribunal accepts that this is an unfortunate situation for the applicant.

15. The Tribunal has carefully considered the suggestion that the applicant made an inadvertent error of her application form and that as a result of this error she failed to pay the relevant application charge for the visa. This is a source of some curiosity for the Tribunal, because the applicant’s husband did pay the visa application charge for the same visa. The Tribunal is not satisfied by the explanation that the applicant was not reasonably aware that at the time of the visa application on 28 April 2020 that she should also have paid the relevant application charge at the time because her husband’s visa application fee was paid. In balancing the evidence, the Tribunal is not satisfied by the applicant’s explanation. The Tribunal finds that the applicant ought to have reasonably been aware of the importance of complying with the visa application requirements, including paying the relevant application charge. In any event, an invalid application for a visa cannot give rise to an obligation under s.65 of the Act to grant a visa (see s.47(3) of the Act).

16. Accordingly, the Tribunal finds that the applicant applied for the Class FA Subclass 600 Visitor visa on 27 July 2020, which is not within 28 days after the last day she held a substantive visa, she does not satisfy Criterion 3001.  Accordingly, the Tribunal finds that the applicant does not meet cl.600.223 and is unable to meet the criteria for the grant of the Class FA Subclass 600 Visitor visa.

17. 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

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

    Joseph Lindsay
    Member