Rai (Migration) - [2024] AATA 1075

Rai (Migration) [2024] AATA 1075 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Amina Rai
REPRESENTATIVE:  Mr Majeesh Variyaniyil Gopi (MARN: 1808791)
CASE NUMBER:  2302704
HOME AFFAIRS REFERENCE(S):          BCC2022/5218486

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 3:46pm
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 – mother’s physical health and treatment, and stress – condition not incapacitating and minimal efforts to make appointment with specialist – joint hearing with mother’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 Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW AND TRIBUNAL HEARING
The visa applicant, Miss Amina Rai, applied for the visa on 6 December 2022. Her mother, Sushma Rai, 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 mother, Sushma, 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 sister and mother 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…

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 1075
Case: [2024] AATA 1075
Decision Date: 29 April 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse a Visitor (Class FA) Subclass 600 visa. The applicant, Miss Amina Rai, applied for the visa on 6 December 2022, one day after her previous visa expired. The refusal was based on the applicant not holding a substantive visa at the time of application and failing to satisfy Schedule 3 criteria, specifically criterion 3004, as required by cl 600.223 of the Migration Regulations 1994 (Cth). The applicant's mother also applied for a similar visa on the same date, and their applications were heard jointly.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl 600.223 of Schedule 2 to the Migration Regulations. This clause mandates 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 applicant contended that factors beyond her control, namely her mother's ill health and the associated stress, prevented her from meeting these requirements.

The Tribunal found that the applicant was in Australia at the time of her application, but was not satisfied that she held a substantive visa. Consequently, the Tribunal considered whether the applicant met cl 600.223(2)(a) and (b). While the applicant argued that her mother's medical condition and the stress involved were beyond her control, the Tribunal noted that the condition was not incapacitating and that minimal efforts were made to secure an appointment with a specialist. The Tribunal concluded that the applicant did not satisfy the requirements of cl 600.223.

The Tribunal affirmed the delegate's decision to refuse the 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 Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW AND TRIBUNAL HEARING The visa applicant, Miss Amina Rai, applied for the visa on 6 December 2022. Her mother, Sushma Rai, 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 mother, Sushma, 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 sister and mother 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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