Rai (Migration) - [2024] AATA 1072

Rai (Migration) [2024] AATA 1072 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Sushma Rai
REPRESENTATIVE:  Mr Majeesh Variyaniyil Gopi (MARN: 1808791)
CASE NUMBER:  2302699
HOME AFFAIRS REFERENCE(S):          BCC2022/5218542
MEMBER:Jane Marquard
DATE:29 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 29 April 2024 at 3:45pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – substantive visa not held when application made – application made one day after previous visa expired – factors beyond applicant’s control – physical health and treatment, and stress – condition not incapacitating and minimal efforts to make appointment with specialist – joint hearing with daughter’s application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3004(c)
CASES
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v Minister for Immigration [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 9 February 2023 to refuse to grant the visa applicant a Subclass 600 (Visitor) (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW AND TRIBUNAL HEARING
The visa applicant, Mrs Sushma Rai, applied for the visa on 6 December 2022. Her daughter, Amina also applied for a Subclass 600 (Visitor) (Class FA) visa on the same date.
The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) 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 11 April 2024 by MS Teams video to give evidence and present arguments. Her daughter, Amina also appeared at a joint hearing in relation to her matter, as the issues raised were the same and Sushma and Amina requested a joint hearing. Another daughter, Elina, also appeared at the hearing. The visa applicant and her daughters are referred to by their first names in this decision so as to distinguish them from each other.
RELEVANT LAW
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 the Regulations. Relevantly to this case, they include cl 600.223, which requires a visa applicant…

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.

Continue reading Rai (Migration)

Details

AGLC: Rai (Migration) [2024] AATA 1072
Case: [2024] AATA 1072
Decision Date: 29 April 2024

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse Mrs Sushma Rai a Subclass 600 (Visitor) visa. Mrs Rai applied for the visa on 6 December 2022, one day after her previous substantive visa had expired. The delegate refused the visa on the basis that Mrs Rai did not hold a substantive visa at the time of her application and did not satisfy the Schedule 3 criteria, specifically criterion 3004, as required by clause 600.223 of Schedule 2 to the Migration Regulations 1994 (Cth). Mrs Rai's application was heard jointly with her daughter's application due to the similar issues involved.

The primary legal issue before the Tribunal was whether Mrs Rai met the requirements of clause 600.223 of the Migration Regulations. This clause stipulates that if an applicant is in Australia at the time of application and does not hold a substantive visa, they must satisfy Schedule 3 criteria, including criterion 3004. The Tribunal was required to determine if Mrs Rai, having applied for the visa after her previous substantive visa expired, met these Schedule 3 requirements.

The Tribunal found that Mrs Rai was in Australia when she lodged her application, a fact not in dispute. However, it was also clear that she did not hold a substantive visa at that time. Consequently, the Tribunal was required to assess whether she satisfied the Schedule 3 criteria. While the applicant argued that factors beyond her control, such as physical health issues and stress, prevented her from making timely appointments with a specialist, the Tribunal found that these conditions were not incapacitating and that minimal efforts were made to secure such appointments. Therefore, the Tribunal was not satisfied that Mrs Rai met the requirements of clause 600.223.

Accordingly, the Tribunal affirmed the delegate's decision to refuse to grant Mrs Rai the Visitor (Class FA) visa.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 February 2023 to refuse to grant the visa applicant a Subclass 600 (Visitor) (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW AND TRIBUNAL HEARING The visa applicant, Mrs Sushma Rai, applied for the visa on 6 December 2022. Her daughter, Amina also applied for a Subclass 600 (Visitor) (Class FA) visa on the same date. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) 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 11 April 2024 by MS Teams video to give evidence and present arguments. Her daughter, Amina also appeared at a joint hearing in relation to her matter, as the issues raised were the same and Sushma and Amina requested a joint hearing. Another daughter, Elina, also appeared at the hearing. The visa applicant and her daughters are referred to by their first names in this decision so as to distinguish them from each other.RELEVANT LAW 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 the Regulations. Relevantly to this case, they include cl 600.223, which requires a visa applicant to satisfy the Minister that he or she meets Schedule 3 criteria. 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.FINDINGS AND REASONS For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal has considered whether the applicant meets cl 600.223(1) or (2)(a) or (b), (which are set out earlier in this decision).Was the applicant in Australia at the time of application? (Cl 600.223(1)) The Tribunal is satisfied that the visa applicant was in Australia at the time of application, being 6 December 2022, as demonstrated by Departmental movement records. This is not an issue in dispute and was confirmed at the Tribunal hearing.Did the applicant hold a substantive visa at the time of application? (Cl 600.223(1))

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl.600.223 of Schedule 2 to the Regulations.DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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