Ramachandran (Migration)

[2021] AATA 2850

Ramachandran (Migration) [2021] AATA 2850 (9 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Uma Ramachandran

CASE NUMBER:  2102799

DIBP REFERENCE(S):  BCC2020/2244991

MEMBER:Naomi Schmitz

DATE AND TIME OF

ORAL DECISION AND REASONS:         9 July 2021 at 10:56 am (VIC time)

DATE OF WRITTEN RECORD:                4 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 04 August 2021 at 7:06am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – previous compliance with visa conditions – prevalence of COVID-19 in home country and desire to receive vaccination in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3001

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 February 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 9 July 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application to the Administrative Appeals Tribunal to review the decision made by a delegate of the Minister for Home Affairs on 25 February 2021 to refuse to grant the visa applicant Ms Uma Ramachandran’s application for a Visitor (Class FA) Subclass 600 visa.

4. The visa applicant applied for a Visitor visa on 3 September 2020. During the hearing the Tribunal asked the visa applicant what date she applied for the Visitor visa, to which she replied, ‘28 August 2020’. The Tribunal as a matter of procedural fairness pursuant to s359A of the Migration Act 1958 (Cth) read the delegate’s decision record to the visa applicant which she accepted was the correct date of lodgement for the visa application.

5. 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.

6. The delegate refused to grant the visa on the basis that Ms Uma Ramachandran did not satisfy cl 600.223 because at the time she applied for the visa she was in Australia and did not hold a substantive visa and she did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

7. If an applicant is in Australia at the time of application, to satisfy cl 600.223 the applicant must either:

   ·Have held a substantive visa other than a specified substantive temporary visa; or

   ·If they did not hold a substantive visa, their last substantive visa must not have been a specified visa and they must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

8. Ms Uma Ramachandran was in Australia at the time she applied for the visa.

9. At the time of application, Ms Uma Ramachandran did not hold a substantive visa, but was on a WE-050 Bridging Class E visa. This was contained in the delegate’s decision record. The visa applicant gave evidence that her daughter had read the contents of the delegate’s decision record to her.

10. As such, the issue in the present case, is whether the applicant satisfies the Schedule 3 criteria, specifically criterion 3001. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. Relevant to this matter, the “relevant day” is defined in 3001(2), as being the last day you ceased to hold a substantive visa or criminal justice visa.

11. During the hearing, Ms Uma Ramachandran gave oral evidence that her last substantive visa was a Visitor (Class FA) Subclass 600 visa which was valid until 5 August 2020. This was also conceded in a ‘date chronology’ provided by the applicant. The date the last substantive visa ceased was noted in the delegate’s decision record, a copy of which was provided by the visa applicant to the Tribunal. Accordingly, the last day the visa applicant held a substantive visa was on 5 August 2020.

12. During the hearing, visa applicant’s legal representative confirmed to the Tribunal that the visa applicant was not disputing when her substantive visa ceased. The legal representative also confirmed that the visa applicant was not disputing when she lodged her Visitor (Class FA) Subclass 600 visa application. 

13. The visa applicant therefore applied 29 days after she last held a substantive visa.

14. This period exceeds the statutory 28-day period and as such the visa applicant cannot meet criterion 3001.

15. During the hearing the visa applicant explained to the Tribunal matters personal to her, including the fact that she has two daughters who reside in Australia, that she does not have anyone in India to look after her if she were to become sick and that due to COVID-19 it is her desire to stay in Australia to receive her second vaccination. The visa applicant stated she has travelled 10 times in the past to Australia and has always complied with her visas and Australia’s migration laws. The visa applicant also does not want to return to India because some of your friends have died of COVID-19 in India. The visa applicant further stated that she did not have any intention to remain permanently in Australia, and asked that her visa be extended and ‘when things go back to normal’ that she wishes to return to her home country of India.

16. The applicant’s legal representative also made submissions on the visa applicant’s behalf. He requested that the Tribunal adjourn its oral decision to allow the visa applicant time to obtain her second vaccination. He also stated that the visa applicant was given ‘wrong advice’ by the Department of Home Affairs when she telephoned them and that the visa applicant ‘came to him after all the damage was done’.

17. Although the Tribunal has sympathy for the unfortunate chronology of events, they are not relevant to the statutory criteria which the Tribunal is bound to apply pursuant to cl. 600.223.

18. The Tribunal therefore finds that the visa applicant failed to satisfy clause 600.223 as she did not hold a substantive visa at the time of application. She also did not satisfy criterion 3001 in that he did not lodge his application within 28 days of her last substantive visa, and therefore does not meet the requirements of cl 600.223.

19. For these reasons the Tribunal affirms the decision not to grant the visa applicant, Ms Uma Ramachandran, the Visitor (Class FA) visa.

    DECISION

20. The Tribunal affirms the decision under review.

    Naomi Schmitz
    Member