Peng (Migration)

[2019] AATA 6032

Peng (Migration) [2019] AATA 6032 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nan Peng

CASE NUMBER:  1917497

HOME AFFAIRS REFERENCE(S):          BCC2019/2729980

MEMBER:Moira Brophy

DATE:1 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 October 2019 at 3:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – application not lodged within 28 days of the last day the applicant held a substantive visa – incorrect information given by former migration agent – no discretion if criterion not met – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 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 21 June 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 May 2019. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he was not satisfied the applicant satisfies the Schedule 3 requirements as set out criterion 3001.

4. The applicant, Mr Nan Peng appeared before the Tribunal on 1 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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.

   BACKGROUND

7. The applicant is a 33 year old national of China who first arrived in Australia on 29 October 2010 as the holder of a TU-573 visa. The applicant was granted another TU-573 visa on 13 April 2013, a TU-572 on 11 March 2014 and an UC-457 visa on 25 June 2014. The UC-457 visa ceased on 25 June 2018. The applicant travelled multiple times on these visas. The applicant last arrived in Australia on 16 February 2019. The applicant lodged this application for a FA600 Visitor – Tourist visa on 24 May 2019. On this date the applicant held a WC-030 Bridging (Class C) visa. The applicant last held a substantive UC-457 visa on 25 June 2018.

8. In support of this applicant the following documents were provided to the Department :

   ·Copy of notification of invalid application for a visitor visa

   ·Copy of Applicants passport

   ·Employment letter from Sunnyside accountants Pty limited

9. At the time of hearing the applicant provided the following:

   ·Statutory declaration from the applicant Mr Nan Peng dated 27 September 2019

   ·Letter to Levyn Enterrise Pty Ltd seeking refund of monies previously paid dated 27 September 2019

   ·Proof of monies paid to Levyn Pty Ltd

   ·Character reference from Yanwen Tan dated 25 September 2019

   ·Copy of Delegates record of Decision dated 21 June 2019

   ·Copy of acknowledgment of application for a Visitor visa dated 2 July 2019

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case whether Mr Peng meets the requirements of cl. 600.223.

11. That clause provides:

    (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 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    (b)  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:

    (i)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    (ii)  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.

12. Mr Peng was in Australia at the time he applied for the visa. He did not hold a substantive visa at that time. The last substantive visa he held was a Subclass UC-457 visa and so it was not one of the visas specified in cl. 600.223. The issue is therefore whether Mr Peng satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001 which is set out in the attachment to this decision.

13. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The 'relevant day' is defined in 3001(2).

14. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, for Mr Peng’s substantive visa ceased on 25 June 2018 and the application for a Visitor visa was made on 27 May 2019.

15. As the visa application was not made within 28 days of the relevant day, Mr Peng does not satisfy criterion 3001. Therefore, Mr Peng does not meet the requirements of cl. 600.223. The Tribunal understands Mr Peng’s submission that he has been the victim of his former agent’s incompetence and that he relied on the assurances given to him that his previous UC-457 visa would be extended. While the requirement to hold a substantive visa rests with the applicant the Tribunal appreciates the agent did not provide the applicant with the relevant information. However the Tribunal does not have discretion if the requirements of criterion 3001 are not met.

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Moira Brophy
    Member