Ramm (Migration)

Case [2024] ARTA 845

Ramm (Migration) [2024] ARTA 845 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kerry Ramm

CASE NUMBER:  2310207

HOME AFFAIRS REFERENCE(S):          BCC2023/3045647

MEMBER:Jane Marquard

DATE:1 October 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

•     Criterion 3004 for the purposes of cl 600.223 of Schedule 2 to the Regulations.

Statement made on 01 October 2024 at 4:41am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – not holder of substantive visa when application made – factors beyond applicant’s control and compelling reasons for granting visa – deaths in family, breakup of relationship, COVID, severe physical health conditions and reduced mental functioning – application made three days before last visa expired invalid because of non-payment of additional fee – application site charged only base fee – reasonable to rely on department’s information – notified of invalidity after visa expired and unable to rectify – second application, paying additional fee, made promptly and valid – improving health and plans for travel, socialising and departure – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 46(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3004(c), (d)

CASES
Babicci v MIMIA [2005] FCAFC 77
Liu v MIAC [2010] FMCA 60
MIAC v Chan (2008) 172 FCR 193
Mohammed v MIBP [2015] FCA 184
MZYPZ v MIAC [2012] FCA 478
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50
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

  1. The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 23 June 2023 to refuse to grant her a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    BACKGROUND TO THE REVIEW

  2. The applicant is a woman from the United Kingdom.

  3. She first arrived in Australia on 31 August 2019 on a Visitor (Tourist) (TV-651) visa. She departed the country and then returned on a number of occasions, last arriving on 10 March 2020.

  4. She was granted a Visitor (Tourist) (FA-600) visa on 24 November 2022. This visa expired on 24 May 2023.

  5. The visa applicant applied for the visa the subject of this review on 31 May 2023.

  6. 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.

  7. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which…

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AGLC
Ramm (Migration) [2024] ARTA 845
Case
[2024] ARTA 845
Decision Date

CaseChat Overview and Summary

The case of Ramm (Migration) involves a United Kingdom national who applied for a Visitor (Class FA) visa under the Tourist stream, after her previous Visitor visa expired. The delegate of the Minister for Home Affairs refused the application on the basis that the applicant did not hold a substantive visa at the time of application and did not meet the Schedule 3 criteria. The applicant sought a review of this decision by the Tribunal. The primary legal issue was whether the applicant met the requirements of cl 600.223 of the Migration Regulations 1994. The Tribunal found that the applicant was in Australia at the time of application and did not hold a substantive visa, but that she satisfied the Schedule 3 criteria. Therefore, the Tribunal concluded that the matter should be remitted for reconsideration, finding that the applicant met the requirements of cl 600.223.

The Tribunal examined the relevant provisions of cl 600.223 of the Regulations, which set out the criteria for a Subclass 600 visa. The Tribunal noted that since the applicant was in Australia at the time of application and did not hold a substantive visa, cl 600.223(1) was not applicable. The Tribunal also found that the last substantive visa held by the applicant was not a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream, so cl 600.223(2)(a) did not apply. Consequently, the issue was whether the applicant satisfied cl 600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004, and 3005. The Tribunal concluded that the applicant satisfied these criteria, thus meeting the requirements of cl 600.223.

The Tribunal remitted the application for reconsideration, directing that the applicant meets the criteria for a Subclass 600 (Visitor) visa. The Tribunal considered the applicant's personal circumstances, including the deaths in her family, the breakup of her relationship, her COVID-19 infection, and her severe physical health conditions and reduced mental functioning, which she argued justified the grant of the visa. The Tribunal found that the applicant had made a second valid application promptly after her first was declared invalid due to a non-payment of an additional fee. The Tribunal also noted the applicant's improving health and plans for travel, socialising, and departure.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 23 June 2023 to refuse to grant her a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW The applicant is a woman from the United Kingdom. She first arrived in Australia on 31 August 2019 on a Visitor (Tourist) (TV-651) visa. She departed the country and then returned on a number of occasions, last arriving on 10 March 2020. She was granted a Visitor (Tourist) (FA-600) visa on 24 November 2022. This visa expired on 24 May 2023. The visa applicant applied for the visa the subject of this review on 31 May 2023. 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 Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which requires the visa applicant to satisfy the Minister that she meets ‘Schedule 3 criteria’. 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 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.EVIDENCE CONSIDERED IN THE REVIEW The Tribunal has taken into consideration the application and supporting documents before this Tribunal and new evidence before the Tribunal. The applicant made written submissions dated 7 September 2024. She also appeared before the Tribunal by video on 18 September 2024 to give evidence and present arguments. FINDINGS AND REASONS For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The issue in the present case is whether the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations. 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.Was the applicant in Australia at the time of application? The Tribunal is satisfied that the applicant was in Australia at the time of application, being 31 May 2023. This is not an issue in dispute.Did she hold a substantive visa at the time of application?

Evidence

Evidence Before The Court

The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which requires the visa applicant to satisfy the Minister that she meets ‘Schedule 3 criteria’. 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 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.EVIDENCE CONSIDERED IN THE REVIEW The Tribunal has taken into consideration the application and supporting documents before this Tribunal and new evidence before the Tribunal. The applicant made written submissions dated 7 September 2024. She also appeared before the Tribunal by video on 18 September 2024 to give evidence and present arguments. FINDINGS AND REASONS For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The issue in the present case is whether the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations. 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.Was the applicant in Australia at the time of application? The Tribunal is satisfied that the applicant was in Australia at the time of application, being 31 May 2023. This is not an issue in dispute.Did she hold a substantive visa at the time of application? The Tribunal is satisfied that the applicant did not hold a substantive visa at the time of application. As confirmed by the applicant at the Tribunal hearing, and by Departmental records, the last substantive visa held by her was a Visitor Subclass 600 visa which expired on 24 May 2023. She applied for the visa the subject of review on 31 May 2023Findings on cl 600.223(1) As the applicant was in Australia and did not hold a substantive visa at the time of application, cl 600.223(1) is not applicable.Did she hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream? The last substantive visa was not one of these types of visas as it was a visitor visa. Therefore cl 600.223(2)(a) is not applicable. Does the applicant meet cl 600.223(b) in that she satisfies Schedule 3 criteria? As cl 600.223(1) and cl 600.223(2)(a) are not applicable, the issue is whether the applicant satisfies cl 600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

Decision

Reasons for decision

Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations.DECISION The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:• Criterion 3004 for the purposes of cl 600.223 of Schedule 2 to the Regulations. Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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