Pechova (Migration) - [2021] AATA 5481

Pechova (Migration) [2021] AATA 5481 (13 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Nela Pechova
CASE NUMBER:  2017666
HOME AFFAIRS REFERENCE(S):          BCC2020/1335053
MEMBER:Jane Marquard
DATE:13 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·Public Interest Criterion 3004 for the purposes of cl 600.223 (2) of Schedule 2 to the Regulations.

Statement made on 13 October 2021 at 6:47am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Schedule 3 criteria – not holder of substantive visa at time of application – whether because of factors beyond applicant’s control – COVID-19 pandemic – international border closures – flight cancellations – compelling reasons for granting the visa – no intention of breaching any laws – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004
CASES
Babicci v MIMIA [2005] FCAFC 77
Liu v MIAC [2010] FMCA 60
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Paduano v MIMIA [2005] FCA 211
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su v MIAC [2007] FMCA 318
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 November 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The visa applicant is a woman from the Czech Republic.
The visa applicant applied for the visa on 6 April 2020. 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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which requires the visa applicant to satisfy the Minister that she meets Schedule 3 criteria. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because at the time she applied for the visa she did not hold a relevant substantive visa and did not satisfy criterion 3004 in Schedule 3 to the Regulations.
The visa applicant appeared before the Tribunal on 6 October 2021 to give evidence and present arguments in relation to issues arising under the review. Her partner, Rudy Antonio Caneira, also appeared at the Tribunal hearing. The hearing was conducted by video due to restrictions imposed by the COVID-19 pandemic. The applicant confirmed that she could see and hear…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Pechova (Migration) [2021] AATA 5481
Case: [2021] AATA 5481
Decision Date: 13 October 2021

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), made by Ms Pechova. The applicant was in Australia at the time of her application on 6 April 2020, but did not hold a substantive visa, her last substantive visa having expired on 17 March 2020. The dispute before the Tribunal was whether the applicant met the requirements of clause 600.223 of Schedule 2 to the Migration Regulations 1994, specifically clause 600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria.

The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, particularly Public Interest Criterion 3004. This criterion involves several sub-requirements, including whether the applicant was without a substantive visa due to factors beyond her control, whether there were compelling reasons for granting the visa, and whether the applicant had substantially complied with visa conditions and intended to comply with the conditions of the visa being sought. The Tribunal also had to consider whether the applicant would have been eligible for the visa if she had applied on the day she last held a substantive visa.

The Tribunal found that the applicant was not the holder of a substantive visa because of factors beyond her control, noting the context of the COVID-19 pandemic, international border closures, and flight cancellations. It was satisfied that there were compelling reasons for granting the visa and that the applicant had complied substantially with the conditions of her previous visas and intended to comply with the conditions of the Visitor visa. Consequently, the Tribunal concluded that the applicant met the requirements of clause 600.223.

The Tribunal remitted the application for reconsideration, directing that the applicant met Public Interest Criterion 3004 for the purposes of clause 600.223(2) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of cl.600.223. That clause provides (in paraphrase):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: (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.Was the applicant in Australia at the time of application? The Tribunal is satisfied that the applicant was in Australia at the time of application, being 6 April 2020. This is not an issue in dispute.Did she hold a substantive visa at the time of application? The Tribunal is satisfied that the applicant did not hold a substantive visa at the time of application. As confirmed by the applicant at the Tribunal hearing, the last substantive visa held by her was a Visitor visa Subclass 651 which expired on 17 March 2020. Findings on Clause 600.223(1) As the applicant was in Australia and did not hold a substantive visa at the time of application, cl.600.223(1) is not applicable.Did she hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream? The last substantive visa was not one of these visas as it was a visitor visa. Therefore cl. 600.223(2)(a) is not applicable. She must satisfy cl.600.223(b).Does the applicant meet cl.600.223(b) in that she satisfies Schedule 3 criteria? The issue is whether the applicant satisfies cl.600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. In regard to Schedule 3 criteria 3004, the Tribunal must be satisfied of all of the following:·the applicant is not the holder of a substantive visa because of factors beyond his or her control – criterion 3004(c);·there are compelling reasons for granting the visa – criterion 3004(d);·the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant – criterion 3004(e);·the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa – criterion 3004(f);·the applicant intends to comply with any conditions of the visa – criterion 3004(g); and·the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia – criterion 3004(h).Is the applicant not the holder of a substantive visa because of factors beyond her control?

Decision

Reasons for decision

Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.600.223. DECISION The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa: ·Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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