Revuri (Migration)

[2023] AATA 946

Revuri (Migration) [2023] AATA 946 (3 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Smriti Revuri

CASE NUMBER:  2200991

HOME AFFAIRS REFERENCE:               BCC2021/2271734

MEMBER:L Symons

DATE:3 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 03 April 2023 at 2:42pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – family medical treatment – father pursuing further studies – complaints against a migration agent – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 57, 65, 195
Migration Regulations 1994, Schedule 2, cl 600.223; 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 5 January 2022 to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Home Affairs (the Department) for the visa on 24 November 2021. At the same time, her father, Praveen Kumar Revuri, and mother, Sumathi Revuri, also lodged applications. 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.223(2) because she did not meet the requirements of Schedule 3, criterion 3001. On 25 January 2022, she applied to the Tribunal for a review of that decision. On that date, her father (file no: 2200913) and mother (file no: 2200992) also lodged applications for review.

4. The applicant’s parents appeared before the Tribunal, via video, on 7 March 2023 to give evidence and present arguments on behalf of the applicant as she is a minor. The hearing was conducted as a joint hearing in relation to her application and the applications of her parents. Her parents consented on her behalf to a joint hearing of her application and their applications. Her parents confirmed that they were giving evidence on her behalf as her parents and guardians. Her parents also stated that they were witnesses in each other’s case.

5. The Tribunal received oral evidence from the applicant’s paternal uncle, Sri Charan Kumar Revuri.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of Schedule 3, criterion 3001 for the purpose of cl.600.223.

8. The applicant has filed a copy of the Department’s Decision Record dated 5 January 2022 with the Tribunal which indicates that her last substantive visa was a subclass 500 Student (Dependent) visa that ceased on 8 September 2021. She applied for the subclass 600 Visitor visa, currently subject to review, on 24 November 2021 and was the holder of a subclass 050 Bridging E visa at that time. Therefore, she is required to satisfy the requirements of cl.600.223(2).

9. Clause 600.223(2) requires the Tribunal to be satisfied that, if the applicant was in Australia at the time of the application and did not hold a substantive visa and the last substantive visa held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, she must satisfy Schedule 3, criteria 3001, 3003, 3004 and 3005. Her visa application was refused by the Department on the basis that she did not satisfy Schedule 3, criterion 3001.

10. Schedule 3, criterion 3001 is referred to in the attachment below. Criterion 3001(1) requires that the application for the subclass 600 Visitor visa is validly made within 28 days after the relevant day (within the meaning of subclause (2)). Criterion 3001(2)(c) provides that, if the applicant ceased to hold a substantive visa on or after 1 September 1994, the relevant day is the last day when the applicant held a substantive visa.

11. On 29 November 2021, the delegate wrote to the applicant, pursuant to s.57 of the Act, and invited her to comment on adverse information which indicated that she did not meet the requirements of Schedule 3, criterion 3001.

12. On 6 December 2021, the applicant’s father provided a response and supporting documents. In his response, he stated that he required treatment after serious side effects from a vaccine. He instructed a migration agent who did not lodge the documents in time. By the time he found out there was a delay. He then filed an online visa application and was asked to file a paper application. He waited for two things before filing the application. The first was a Medical Certificate to indicate whether he was fit to work and, if not, he thought of leaving Australia. The second was that he had to change his course due to his medical condition. It was challenging personally after working for near 4 ½ years due to situations beyond his control.

13. The applicant’s father stated that he applied for the Visitor visa so he could get a Confirmation of Enrolment (COE) and move over to a Student visa. He requested the visa so he could complete his studies. Along with the response, the applicant provided documents in relation to her father including an unfinished submission to an academic journal, an application to downgrade from a Doctorate of Philosophy to a Master by Research and a Medical Certificate dated 16 November 2021.

14. After considering the evidence, the delegate was not satisfied that the applicant met the requirements of criterion 3001 and therefore found that she did not satisfy cl.600.223. Her application for a Visitor visa was refused on 5 January 2022.

15. The applicant has filed with the Tribunal copies of the Department’s Decision Record dated 5 January 2022, a COE for her father dated 24 January 2022 and her father’s undated and unsigned statement. The Department’s Decision Record indicates that the applicant’s last substantive visa (a subclass 500 Student visa) ceased on 8 September 2021. The COE indicates that her father was enrolled in a Master of Philosophy at the University of Western Australia from 7 February 2022 to 11 April 2022.

16. During the hearing. the applicant’s father gave evidence that he first came to Australia in 2017 on a Student visa. He received a scholarship for his studies in Australia. His spouse accompanied him on a Student dependant visa. The applicant was born in Australia. He was enrolled in a Master of Philosophy degree at the University of Western Australia. Due to the Covid-19 pandemic, he was unable to complete his degree on time. He sought an extension of his COE for another 6 months. There was a delay getting a new COE and he was unable to get it before his Student visa expired (on 8 September 2021). He required a COE to apply for another Student visa.

17. The applicant’s father stated that he spoke to his friends who are permanent residents in Australia. They advised him to apply for a Visitor visa first and then apply for a Student visa. One of his friends advised him to instruct a migration agent. He contacted migration agents in Australia and obtained quotes from them. He could not afford their fees. He asked his brother for financial help. He initially stated that he got the details of another migration agent online. He subsequently stated that a friend gave him the details of a migration agent named Anju James who was from Sydney but was in India at that time.

18. The applicant’s father stated that he contacted his brother, who lives in India, on 24 August 2021 and gave him the details of the migration agent Anju James. He asked his brother to instruct Anju James to lodge an application for a Visitor visa on his behalf and to pay him. His brother sent the migration agent his documents, such as his passport, and was asked to transfer the money to him which he did. He then received no feedback from the migration agent. He was not well at that time and was frequently in hospital between July 2021 and September 2021. He never spoke to the migration agent himself.

19. The applicant’s father stated that he checked his ImmiAccount and he had not been issued with a Visitor visa. He attempted to contact the migration agent, Anju James, between 3 September 2021 and 6 September 2021 but was unable to do so. He asked his brother if he had been in contact with him but he had not heard from him. He asked his brother to keep trying to contact him. He then received a telephone call on 22 September 2021 from his Case Officer, Nick, who informed him that his Student visa had expired and advised him to apply for a Bridging visa and then a Visitor visa. 

20. The applicant’s father stated that he contacted his brother on 23 September 2021 and he contacted Anju James who informed him that he was going to lodge the visa application. His brother was then preoccupied with the birth of his child. He found out on 23 or 24 October 2021 that Anju James could not be contacted on his telephone number and had cheated his brother. He then borrowed money from a friend and applied for the Visitor visa. He was not able to lodge an online application and had to lodge a paper application. 

21. The Tribunal noted that in his application for a Visitor visa he stated that he wanted the visa to complete his studies and asked the applicant’s father about it. He stated that he obtained a new COE for the period 7 February 2022 to 11 April 2022 and completed his degree. He graduated on 23 February 2023. He has a couple of job opportunities now but cannot apply. As his Student visa expired, he cannot apply for a Graduate visa or any other visa. He had hoped to work for a couple of years and return home. He cannot work now.

22. The applicant’s mother gave evidence that she came to Australia with her spouse on a Student Dependent visa. The applicant was born in Australia on 17 April 2018. She and her spouse have had discussions in relation to what was happening about their visa applications. She did not contact a migration agent herself. She left that to her spouse. When asked why she now wants a Visitor visa, she responded that she is dependent on her spouse and cannot leave him and return home. The applicant is also seeking a Visitor visa so she can remain here with her and her spouse. Her spouse has completed his studies in Australia. She hopes he can get a visa. They have not done anything wrong.  

23. The applicant’s paternal uncle, Sri Charan Kumar Revuri, gave evidence that the applicant’s father contacted him towards the end of August 2021 and asked him for money for his visa application. He was sick after the Covid vaccine at that time. He sent him his documents, asked him to contact a man named Anju and give him the documents and the money. He contacted Anju on 3 or 4 September 2021 and he asked him to hand over the documents to his agent. Anju asked him to transfer the money to him as soon as possible. The money was paid to his agent in cash. He did not receive a receipt. He contacted Anju on 8 or 10 September 2021 and asked him what was happening. He was told that he was busy as he had three or four other applicants. He attempted to contact him on two or three occasions after that but was unable to do so.

24. Sri Charan Kumar Revuri gave evidence that after 12 September 2021 he was busy as his wife gave birth to their daughter and he was at the hospital. His daughter was premature and was born 10 days early. His wife had medical issues and was in hospital for 8 or 9 days. They were his main focus at that time.

25. Sri Charan Kumar Revuri stated that Anju spoke convincingly. He thought he was genuine and believed him. The applicant’s father contacted him and asked what progress was being made with his visa application and whether he had contacted Anju. He told him he had tried unsuccessfully to contact him on two or three occasions and would keep trying. Anju then changed his mobile telephone number and he was unable to contact him.

26. Having considered all the evidence, the Tribunal accepts that the applicant’s father was unable to complete his Master of Philosophy degree prior to the expiry to his Student visa and was unable to get an extended COE in time to apply for a new Student visa prior to the expiry of his Student visa on 8 September 2021. Based on his evidence that he was cheated by an unscrupulous migration agent and followed poor advise given to him by his Case Officer at the Department, the Tribunal has considerable sympathy for him was he is now not able to apply for a Graduate visa or accept the job offers he has received and this has a significant impact on him, his spouse and the applicant. However, the Tribunal does not have the discretion to waive the requirements of Schedule 3, criterion 3001 for a Visitor visa.

27. The Tribunal finds that the applicant was in Australia at the time she applied for the subclass 600 Visitor visa on 24 November 2021. The Tribunal finds that she was not the holder of a substantive visa at the time of application. The Tribunal finds that her last substantive visa was a subclass 500 Student Dependent visa that ceased on 8 September 2021. Therefore, the Tribunal finds that the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

28. The Tribunal has considered whether the applicant satisfies schedule 3, criterion 3001, as required in cl.600.223(2)(b). The Tribunal finds that she ceased to hold a substantive visa on or after 1 September 1994 as her last substantive visa ceased on 8 September 2021. The Tribunal finds that 8 September 2021 is the relevant day for the purposes of cl.600.223(2). The Tribunal finds that the application for the subclass 600 Visitor visa was not validly made within 28 days of the relevant day.

29. In view of the above, the Tribunal finds that the applicant does not meet the requirements of Schedule 3, criterion 3001. As she does not satisfy Schedule 3, criterion 3001, she is unable to meet the requirements of cl.600.223(2)(b) and cl.600.223 in its entirety. 

30. For the above reasons, the Tribunal finds that the applicant does not satisfy the requirements of Schedule 3, criterion 3001 and therefore finds that the requirements of cl 600.223 are not met.

    DECISION

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

    L. Symons
    Member

    
    

    ANNEXURE

    Schedule 2:

    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.

    Schedule 3:

    3001

    (1)  The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)  For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is: 

    (a)  if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)  if the applicant:

    (i)  ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)  entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)  the last day when the applicant held a substantive or criminal justice visa; or

    (iv)  the day when the applicant last entered Australia unlawfully; or

    (d)  if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)  the day when that last substantive visa ceased to be in effect; and

    (ii)  the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.