Ramos-Drake (Migration)

[2022] AATA 1397

Ramos-Drake (Migration) [2022] AATA 1397 (13 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Michelle Ramos-Drake

CASE NUMBER:  2107959

HOME AFFAIRS REFERENCE(S):          BCC2021/287033

MEMBER:Christine Cody

DATE:13 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 13 May 2022 at 4:25pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – delay in finalising review of refusal of previous visa – decision remitted but visa would have ceased in any case – attempts to remain lawfully – work in critical sector, study plans and new relationship with Australian citizen – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351(1)

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), 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 Home Affairs on 2 June 2021 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). The reason for the refusal was that the applicant did not comply with a requirement that her visitor visa application be lodged within 28 days of the cessation of her last substantive visa. The applicant explained the reasons for this, and although the Tribunal has decided that it must affirm the decision, it has decided to refer the matter to the Minister because of her circumstances.

   Initial visitor visa application

2. The applicant is aged 28 years and is a citizen of the USA. She applied for a Visitor visa – Tourist stream on 23 February 2021. In her application form, the applicant stated that she wished to travel and see Australia, and she referred to her previous visa difficulties.

   Adverse information put to the applicant by the Department

3. On 23 April 2021 the Department wrote to the applicant offering her an opportunity to comment on the following:

   Departmental records indicate that the last substantive visa you held ceased on 23 September 2019.

   There is no provision to grant a Tourist stream (subclass 600) visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. As you were the holder of a Bridging Visa A and did not hold a substantive visa within 28 days of your visa lodgement [on 23 February 2021], you may not meet Schedule 3, criterion 3001. A Visitor (subclass 600) visa therefore cannot be granted to a person in your circumstances.[1]

   The applicant’s submissions and evidence provided to the Department in response to the adverse information

   [1] Similar information is in the delegate’s decision record which the applicant provided to the Tribunal.

4. On 29 April 2021 the applicant provided submissions and evidence in response to the Department, with background information and explaining why she did not have a substantive visa at the time of, or within 28 days of, the lodgement of her visitor visa application.

5. She stated that she was placed in an adverse position due to the delayed response from the Tribunal (differently constituted, file number 1936026, referred to as “the first Tribunal”) in relation to her Work and Holiday (Subclass 462) visa. The basis of her assertion is as follows:

   ·     The applicant arrived in Australia with a Work and Holiday visa [22 September 2018] and completed the required work for 3 months in a remote area in Cape Tribulation.

   ·     She then lodged an application for a Work and Holiday (Temporary) (Class US) Work and Holiday (Extension) (Subclass 462) on 16 September 2019. This was refused by the Department on 19 December 2019. The Department stated in their decision record that:

   I have now considered all of the evidence provided by the applicant in support of the work completed with PKs Resort Pty Ltd T/A PKs Jungle Village and The Jungle Village Pty Ltd T/A PK’s Resort Cape Tribulation. While the applicant has provided a contract and payslips that indicate that the applicant would receive cash payment for services, I find that there is limited reliable evidence that supports this claim. In the absence of independently verifiable evidence such as bank transaction statements or payments to the Australia Taxation Office, am unable to be satisfied that the applicant was remunerated for the work in accordance with relevant Australian legislation and awards.

   ·     The applicant lodged an application for review with the first Tribunal on 20 December 2019, however, the application took time to be constituted to, and then determined by, a Tribunal member.

   · On 8 July 2020 the first Tribunal received a lengthy and detailed document with attachments that included letters for employers, and background information that showed the applicant was paid cash due to the remote area she was working in and that she had made bank deposits, and worked a total of 92 days. In light of the new evidence received, on 13 January 2021 the Tribunal remitted the decision to the Department, finding that the applicant did satisfy cl 462.211A of Schedule 2 to the Migration Regulations 1994 (the Regulations). Thus, the first Tribunal’s consideration of the documents provided by the applicant on 8 July 2020 led to it making a decision (without a hearing) on 13 January 2021. She was notified of the decision in early February 2021.

   ·     On 3 February 2021 the Department wrote to the applicant concerning her application for a Work and Holiday (Temporary) (Class US) Work and Holiday (Extension) (Subclass 462) visa. It noted that:

   The [first Tribunal] has advised the Department that the decision to refuse your application for a Work and Holiday (Extension) (US-462) visa was reviewed and has been remitted to the Department for consideration.

   Upon reviewing the remitted application, it has come to our attention that the grant of this application may be contrary to your interest.

   Schedule 2 of the Migration Regulations set out the requirements for assessment and visa validity for the classes of visa. In respect of the Work and Holiday US-462 visa the part relevant to when the visa is in effect is Regulation 462.511 to 462.513. This states:

   462.511

   If the applicant is outside Australia at the time of grant — temporary visa permitting the holder:

   (a) to travel to and enter Australia within 12 months after the date of the grant of the visa; and

   (b) to travel to, enter and remain in Australia until 12 months after the date of first entry to Australia.

   462.512

   If the applicant is in Australia at the time of grant and did not hold a Subclass 462 (Work and Holiday) visa at the time of application — temporary visa permitting the holder to travel to, enter and remain in Australia until 12 months after the date of grant.

   462.513

   If the applicant is in Australia at the time of grant and held a Subclass 462 (Work and Holiday) visa (the old visa) at the time of application — temporary visa permitting the holder to travel to, enter and remain in Australia until 12 months after the date that the old visa would have otherwise ceased to be in effect.

   In respect of your application, you were in Australia and holding a Subclass 462 visa at the time of application and therefore, if granted, the visa would have been in effect till 22 September 2020 (12 months after the date your first 462 visa ceased).

   As this date has now passed, the assessment as to whether or not you meet the requirements for the grant of the visa as set out under Regulation 462.513 is no longer relevant (emphasis added).

   ·     The applicant was provided with a number of options including to proceed with this application, at which time a decision will be made. It was considered that this would lead to the applicant being in Australia without a visa from the cessation date advised above [22 September 2020] and she will become an unlawful non‑citizen and be subject to removal from Australia.

6. The applicant stated that while in Australia, she had worked for 6 months as a disability carer, essential work in a critical health sector during COVID-19 pandemic that could have counted towards a further visa or towards a 1‑year COVID-19 Pandemic Event visa for working. Due to the circumstances, however, she could not apply for such visas.

7. She also said that she had been in a committed relationship with an Australian and had planned to lodge a partner visa application on this basis, but the relationship became abusive.

8. She stated:

   The only visa that I could apply for being on a bridging visa was a tourist visa. I would have loved to apply for a student visa and enter the PHD physiotherapy program at Macquarie University, but I was not even able to do that. I currently have my Bachelors in Athletic Training and Masters in Exercise Physiology and would really love to continue my studies and career here in Australia. I consider Australia my home now and contribute to society working in a critical sector and contribute to the economy. I have fallen in love with this country and have attempted to do everything correctly to stay. It is extremely unfortunate that a delayed response from the [first Tribunal] has left me in such a difficult position not being eligible to apply for a substantive visa. I am pleading you to grant this visa to give me the opportunity to apply for a substantive visa. It is extremely discouraging that I have been placed in this situation out of my control, despite doing everything that was required on my end.

   The delegate’s decision to refuse the visitor visa

9. The delegate refused to grant the visa on the basis that on the date the application was lodged, namely, 23 February 2021, the applicant held a bridging visa, which is not a substantive visa, and therefore cl 600.223(2)(b) requires that the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. The applicant had last held a substantive Work and Holiday (Subclass 462) visa on 22 September 2019. The delegate found that at the time she applied for the FA 600 Visitor – Tourist stream visa, she did not hold a relevant substantive visa and she did not satisfy criterion 3001 in Schedule 3 to the Regulations because she did not apply for the visa within 28 days of expiry of her last substantive visa.

   The Tribunal  

10. An application for review was lodged with the Tribunal. She provided submissions dated 3 May 2022 including a statement noting that this difficulty, as well as the pandemic, has caused her stress, she had done the right thing, she had engaged lawyers who noted her unusual situation and had advised her to lodge a visitor visa application, she is in a new de facto relationship, and she would like to stay longer in Australia.

11. The applicant appeared before the Tribunal on 11 May 2022 to give evidence and present arguments. She had indicated that she would bring witnesses to the hearing, but this did not occur.

12. The applicant gave details of her personal circumstances. Since December 2020 she has worked as a disability carer and currently works full-time with 2 patients: a stroke patient with right paralysis and a boy with down syndrome 5 days/week. The patients are funded through the NDIS.

13. She said that she is in a relationship with an Australian citizen, and he is a town planner. This has been a long and stressful experience for her, of not knowing what will happen. She would like to study as discussed above and enter into the PHD physiotherapy program and also have the opportunity to remain in Australia with her partner. She said that she is willing to leave Australia if that is required before coming back, but she is also very worried that if she is not granted a visitor visa, she will have issues with any future visa applications.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, and that the matter should be referred to the Minister.

    CONSIDERATION

15. 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.

16. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Regulations. Relevantly to this case, they include cl 600.223.

    Clause 600.223

17. Clause 600.223 provides:

    (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 (emphasis added).

18. The issue in the present case whether the applicant meets the requirements of cl 600.223.

19. The applicant was in Australia at the time she applied for the visa. She confirmed that she did not hold a substantive visa at that time. Her last substantive visa was a Work and Holiday (Subclass 462) visa, which is not one of the visas specified in cl 600.223. The issue thus becomes whether the applicant satisfies the Schedule 3 criteria, including criterion 3001.

    Does the applicant meet criterion 3001?

20. 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 cl 3001(2), that is, 28 days from the date that the applicant last held a substantive visa.

21. The visa application was lodged on 23 February 2021.[2]

    [2] This information is also contained in the delegate’s decision record provided to the Tribunal by the applicant.

22. As the Department was not able to grant the applicant a Work and Holiday (Temporary) (Class US) Work and Holiday (Extension) (Subclass 462) visa due to the expiration of time, through no fault of her own, the applicant’s last substantive visa is her first Work and Holiday (Subclass 462) visa, which expired on 22 September 2019.[3] The applicant confirmed that this was the case.

    [3] This date is contained in the delegate’s decision record provided to the Tribunal by the applicant.

23. As discussed with the applicant at hearing and acknowledged by the applicant, her visitor visa application was lodged more than 28 days after the expiry of her last substantive visa. The Tribunal explained that it has no discretion in its consideration of this matter.

24. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, as the applicant’s substantive visa ceased on 22 September 2019 and the application for a visitor visa was made on 23 February 2021.

25. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, the applicant does not meet the requirements of cl 600.223.

    Request for referral for Ministerial Intervention

26. The Tribunal considered whether the applicant’s circumstances come within the Minister’s guidelines for Ministerial Intervention.

27. Under s 351(1) of the Act, the Minister may substitute for a decision of the Tribunal in the Migration and Refugee Division a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest.[4] The powers under s 351 may only be exercised by the Minister personally[5] and are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he or she is requested to do so by the applicant, any other person (including the Tribunal) or in any other circumstances.[6]

    [4] Sections 351 and 417; Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016) at [2] states that what is and what is not in the public interest is a matter for the Minister to determine.

    [5] Sections 351(3), 417(3) and 501J(4).

    [6] Sections 351(7), 417(7) and 501J(8). See also Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016) at [2].

28. The Minister’s guidelines indicate that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstance(s). The Minister’s guidelines list circumstances which may be unique or exceptional.[7] This includes that there are circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

    [7] Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016) at [4].

29. The Tribunal has decided to refer the case for Ministerial consideration.

30. The applicant’s submission is that if the first Tribunal had remitted her case soon after she provided the documents on 8 July 2020, and if the Department had then considered her case (and granted the Work and Holiday (Temporary) (Class US) Work and Holiday (Extension) (Subclass 462) visa before the latest expiry date of 22 September 2020, then she would have been lawfully present with a substantive visa. The Tribunal acknowledges that there can be delays in the constitution of matters to members, and in members’ determination of matters, due to volume and for other reasons. Further, the Tribunal does not presume that the Department would have granted her the second visa, however it does note that there was no suggestion by the Department that this would not have occurred if not for the unfortunate expiration of time. The Tribunal accepts that if the second visa had been granted, the applicant would have been in a position of holding a substantive visa and thus able to lodge a variety of further visa applications. She said that she wanted to lodge a student visa application to study a postgraduate 3‑year Doctor of Physiotherapy course. She was a physiotherapist in the USA and that she has a Bachelor’s degree in Sports Medicine from the University of Connecticut, and a Master’s degree in Exercise Physiology from Long Island University. Alternatively, as this was still during the initial stages of the COVID-19 pandemic, she may not have been able to study at that time and may have tried to lodge a further working holiday visa application or a visa allowing her to stay during the COVID-19 pandemic, waiting to lodge her student visa application at a later date.

31. The Tribunal accepts that the applicant has taken steps throughout her stay in Australia to remain lawfully present and to abide by immigration laws. The Tribunal accepts that she was entitled to pursue her review rights and had done so successfully. However, by the time the delegate could consider granting the Work and Holiday (Temporary) (Class US) Work and Holiday (Extension) (Subclass 462) visa, the visa could not be granted as it would have expired by operation of law.

32. The applicant is concerned for her immigration history, and an adverse immigration history is, rightfully, regarded adversely, when making further applications. The Tribunal considers that the application of the relevant legislation in this particular case will lead to unfair and unintended results.

33. The Tribunal refers this matter to the Minister for consideration.

    DECISION

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

    Christine Cody
    Member