ROJAS CASTRO (Migration)

[2019] AATA 3237

ROJAS CASTRO (Migration) [2019] AATA 3237 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Andrea Aracelli Rojas Castro

CASE NUMBER:  1814335

HOME AFFAIRS REFERENCE(S):          BCC2018/1854599

MEMBER:Moira Brophy

DATE:5 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2019 at 2:40pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – applicant must hold a relevant substantive visa – application not valid as no fee had been paid – application not lodged within 28 days of the relevant day – request for Ministerial Intervention not referred – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 349, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Additional criteria 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 Immigration on 2 May 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 April 2018. 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 Ms Rojas Castro did not satisfy cl.600.223 because at the time she applied for the visa she did hold a relevant substantive visa and she did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

4. The applicant, Ms Andrea Aracelli Rojas Castro appeared before the Tribunal on 3 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her mother Ms Elizabeth Rosa Castro Benavides and from her sister Ms Alessandra Nathalie Rojas Castro.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

7. Ms Andrea Aracelli Rojas Castro is a 17 year old national of Peru. She is in Australia with her mother and her sister. She arrived in Australia on 31 August 2008 and has been here since that time. Most recently she was a dependent on the 457 visa of her mother.

8. On 23 March 2018, with her mother’s 457 visa expiring on 26 March 2018, an online application for a Visitor visa for herself, her mother and her sister was made. Bridging visas A were issued. At the time of lodgement the system indicated no fee was payable. Her mother Ms Benavides attributed this to the fact she was the holder of a Diplomatic and Especial Passport.

9. On 11 April 2018 her mother Ms Benavides was advised the applications were not valid as no fee had been paid. She was advised the exemption from payment for Diplomatic Passport holders did not apply in her case.  Ms Benavides was advised it was not possible for her to pay after lodgement and her only option was to complete new applications.

10. Ms Benavides told the Tribunal she was not advised of the necessity to lodge the new applications within 28 days of her substantive visa expiring. She was advised to lodge the new applications ‘as soon as possible.’

11. Her mother Ms Benavides said in her evidence she had posted the new applications on or before 20 April 2018.

12. Evidence before the Tribunal records the applications as being received on 26 April 2018.

13. Ms Benavides told the Tribunal she did not want to have it on her immigration record that she had been refused a visa particularly in circumstances where she believed there were circumstances that led to the applications being lodged out of time that were not of her making. She said this was especially important to her because of the nature of the work she has done and will continue to do.

14. When the Tribunal raised with the applicant the issue of whether she genuinely intended to stay in Australia for a temporary visit Ms Rojas Castro told the Tribunal she was going to return to Peru. She said she was currently in year 12 at Mosman High School and she would be able to complete her education in Peru. She would be able to apply directly to University in Peru. She intended to study languages. Ms Rojas Castro said her father had undertaken to meet her expenses until she left Australia and to fund the purchase of her airline ticket to Peru. She was requesting the visitor visa to allow her to see more of Australia and to say farewell to her friends.

15. Ms Benavides told the Tribunal the expenses of her daughter’s during the time they were in Australia on a visitor visa would be met by their father.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case whether Ms Rojas Castro meets the requirements of cl. 600.223.

17. That clause provides:

    (1)If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not:

    (a)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    (b)  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:

    (i)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or   Consular) visa; or

    (ii)  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.

18. Ms Rojas Castro was in Australia at the time she applied for the visa. She did not hold a substantive visa at that time. The last substantive visa she held was as a dependent on the Subclass 457 Temporary (Skilled) visa issued to her mother and so it was not one of the visas specified in cl. 600.223. The issue is therefore whether Ms Rojas Castro satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001 which is set out in the attachment to this decision.

19. 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 3001(2).

20. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, for Ms Rojas Castro’s substantive visa ceased on 26 March 2018 and the application for a further Visitor visa was made on 26 April 2018.

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

    Intervention

22. The Tribunal explained at the hearing that the consideration of cl. 600.223 issue did not involve a consideration of compelling circumstances, and it asked whether the intention in the applicant having raised compelling circumstances both at hearing and in submissions to the Tribunal, was to request that the Tribunal refer the case to the Minister for Ministerial Intervention. This was acknowledged by the applicant and the agent as correct.

23. The applicant has requested the Tribunal refer the application to the Minister for ministerial intervention under s.351 of the Act. Subsection 351(1) of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favorable to the applicant, whether or not the Tribunal had the power to make that other decision. Subsection 351(3) provides that the power under subsection (1) may only be exercised by the Minister personally.

24. Subsection 351(7) provides that the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

25. The Minister issued new guidelines (Minister's Guidelines) on 29 March 2016 regarding the exercise of the Minister for Immigration's public interest powers under ss.351, 417 and 501J of the Migration Act 1958.

26. There is not a presumption that the Minister will consider all matters referred to him by the Tribunal. Instead, the Department will assess the circumstances of each case referred by the Tribunal and only refer to the Minister those which meet the new guidelines. Cases assessed as not meeting the guidelines will be finalised by the Department without the Minister's consideration.

27. The Minister's Guidelines explain, amongst other things, the unique or exceptional circumstances in which a case might be considered to be referred to the Minister and in which the Minister may wish to consider intervening, and confirms if a case does not meet these guidelines the Minister does not wish to consider intervening in that case.

28. The Minister's Guidelines on unique or exceptional circumstances refer to matters such as:

    • Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australia citizen or an Australia family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

29. The applicant sought to have the Tribunal refer this matter to the Minister for his intervention. The applicant sought this referral because she submitted she had been refused a visa on grounds she had not contributed to. She submitted there was a disproportionate impact on her personally and professionally if the visa application was refused. She further submitted the consequences of the refusal and subsequent bar would be difficult for her other family members. They would be deprived of an opportunity to participate in and contribute to the life of a country they had come to love. Whilst the Tribunal has some sympathy for the applicant's circumstances as recounted to it by the applicant at hearing, the Tribunal considers it cannot add to the facts as recounted in those submissions nor make any of its own observations.

30. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power but has decided not to refer the matter in this instance. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Moira Brophy
    Member