Peirano Fargioni (Migration)

[2021] AATA 2975

Peirano Fargioni (Migration) [2021] AATA 2975 (21 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Valentino Peirano Fargioni

CASE NUMBER:  2106293

DIBP REFERENCE(S):  BCC2020/2836574

MEMBER:Joseph Lindsay

DATE:21 July 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 21 July 2021 at 9:46am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – applicant’s intention to travel to Italy – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 21 April 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 16 December 2020.

3. The applicant attended the Tribunal by audio on 22 June 2021 to give evidence and present arguments. The applicant was assisted by his representative in the hearing.

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 his circumstances enliven cl.600.223(2)(b) of the Migration Regulations 1994. This is because the applicant did not hold a substantive visa at the time he 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 16 December 2020 he held a Bridging Visa E (WE-050), which is not a substantive visa;

   b.the last substantive visa the applicant held was a Tourist (FA-600) visa, which ceased on 05 May 2020; and

   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 from the applicant that the information in the decision record was correct. The applicant acknowledged that he did not apply for the visa in time. However, the applicant explained that his intentions are to travel to Italy as soon as possible. When the Tribunal put to the applicant that it may affirm the decision under review, the applicant apologised to the Tribunal.

   Analysis and findings

8. In the applicant’s circumstances as someone who was in Australia at the time of application and did not hold a substantive visa, he 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 he held a substantive visa.

9. The Tribunal accepts that when the applicant applied for the Visitor (Class FA) Subclass 600 visa on 16 December 2020 he held a Bridging Visa E (WE-050), which is not a substantive visa. The Tribunal accepts that the last substantive visa the applicant held was a Tourist (FA-600) visa, which ceased on 05 May 2020.

10. The Tribunal accepts that the applicant did not apply for the visa in time. The Tribunal accepts that the applicant’s intentions are to travel to Italy as soon as possible.

11. Accordingly, the Tribunal finds that the applicant applied for the Class FA Subclass 600 Visitor visa on 16 December 2020, which is not within 28 days after the last day he held a substantive visa, and therefore he 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.

    DECISION

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

    Joseph Lindsay
    Member