Saroca (Migration)

[2022] AATA 2091

Saroca (Migration) [2022] AATA 2091 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maria Lucia Anunciacion Saroca

CASE NUMBER:  2110971

HOME AFFAIRS REFERENCE:              BCC2021/1416733

MEMBER:Rosa Gagliardi

DATE:16 June 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

Statement made on 16 June 2022 at 4:18pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – department’s ambiguous advice and daughter’s misunderstanding of relevant dates and requirements – end of stay period and expiry date for multiple travel – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criterion 3001, Schedule 8, condition 8558

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 August 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).

2. The visa applicant applied for the visa on 13 July 2021. The delegate refused to grant the visa on the basis that he/she found that the application for a Visitor (Class FA) Subclass 600 visa (Tourist Stream) was lodged more than 28 days after the applicant last held a substantive visa and therefore found the applicant does not meet Schedule 3 criteria 3001 of regulation 600.223(2). For that reason, the delegate found that the applicant does not meet the relevant criteria in clause 600.223 in Schedule 2 of the Migration Regulations.

3. 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.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 because at the time she applied for the visa, she did not hold a relevant substantive visa and did not satisfy 3001 in Schedule 3 as she did not apply for the visa within 28 days of expiry of the previous visa.

5. The applicant appeared before the Tribunal on 7 June 2022 by telephone in Australia to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, Ms Ma Estermin Pila.

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 criteria for Criterion 3001 of Schedule 3, and ultimately meets cl.600.223. 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) and includes the last day when the applicant held a substantive visa. Specifically, cl. 600.223 requires:

   cl.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.
   
   

8. Criterion 3001 of Schedule 3 states:
   
           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.

9. The applicant lodged an application for a Visitor (Tourist) (subclass 600) visa on 13 July 2021.  Her previous substantive visa – a Visitor visa - had expired on 5 February 2021.  It is therefore not in contention that there had been more than 28 days after the applicant’s last substantive visa ceased and lodgement of her application for this visa under review.

10. The applicant was granted an initial multiple entry Visitor visa on 31 May 2019, valid until
    31 May 2022.  In the Departmental notice granting the visa, the Department clearly wrote that the applicant could only stay 12 months from the date of each arrival.  The notice also clearly stated that that conditions 8558 (Maximum 12 months stay in 18 months) and 8501 (Maintain Health insurance) were imposed on the visa: “These conditions mean that you cannot remain in Australia for more than 12 months in any 18 month period (condition 8558)…If you stay for more than the specified time in any 18 month period the visa may be cancelled”. 

11. On the applicant becoming aware that due to border closures and fears of returning to the Philippines due to the escalating nature of Covid-19, she would not be able to leave Australia within 12 months, her daughter lodged with the Department a waiver of her mother’s 8558 condition with the “No Further Stay Waiver Team”.  However, from the visa grant it is evident that the applicant did not have a “No Further Stay Condition (which includes 8503, 8534 and 8535).  The automatically generated reply, dated 24 June 2020, to the applicant’s waiver request, stated that if the applicant did not have a No Further Stay condition on her visa “you do not need to apply for a waiver.  We will not respond to these emails”.  In other words, the applicant had sent a waiver request when in her case, it was not appropriate because she did not have a No Further Stay Condition on her visa.

12. The further advice provided to those applicants by the Department with condition 8558 (i.e., must not stay more than 12 months within an 18-month period) on their visas appears perplexing:

    If you hold a visa with condition 8558 you should depart Australia before the date on which you will have stayed  in Australia for more than 12 months in any 18 month period.

    If you are unable to depart Australia before this time for reasons beyond your control however, we do not expect you to apply for a further visa unless you are unable to depart before your visa expiry date. [Departmental emphasis]. 
    …

    Condition 8558 is not able to be waived, however a breach of this condition under these circumstances will not result in visa cancellation or have any negative consequences for a future visa application.

13. The Tribunal does acknowledge that the above wording might lull an applicant into thinking that if an applicant cannot depart, due to border closures, for example, then there is no expectation that a further visa needs to be applied for.  As, such the applicant’s daughter thought that her mother’s visa was valid until 31 May 2022 and no further action had to be taken.

14. There is, however, also a notation stating in the letter sent to the applicant, “Your visa will expire at the end of your current stay period and NOT the expiry date for multiple travel to Australia.  To confirm the date your visa will expire if you remain in Australia please check VEVO for this information”.  [Departmental emphasis].  Had the applicant’s daughter checked VEVO she would have known that her mother’s visa was to expire on 5 February 2021 and not 31 May 2022, the expiry date for multiple travel to Australia.  It was for the applicant, therefore, to apply for another substantial visa prior to 5 February 2021 to regularise the applicant’s status in Australia.  However, the Tribunal concedes that the advice from the Department is somewhat ambiguous and that the applicant’s daughter decided not to take any action prior to the expiry of her mother’s visa on 5 February 2021.  In the circumstances, the only thing the Department could do to permit the applicant to remain in Australia was to grant her a Bridging visa. 

15. The applicant’s daughter then alleges that an immigration official told her that her mother was required to apply for a Visitor visa before her Bridging visa expired on 10 August 2021, not within 28 days after the Visitor visa had ceased.  As a result, she applied for her mother on 31 July 2021 unaware of the 28-day rule. 

16. The Tribunal is not in a position to speculate about misleading information provided by an official to the applicant in the past, particularly as the Tribunal does not have a record of any such conversation. 

17. As put to the applicant and her daughter at hearing, however, the Tribunal does not have the power to override the requirements of Criterion 3001, regardless of the circumstances that may have led to a misunderstanding about the applicant being required to lodge a substantive visa within 28 days of her last substantive visa expiring.  In the applicant’s case the outcome seems somewhat harsh, but unfortunately the Tribunal is not able to go behind the regulations.  It would be advisable in any such circumstances that applicant’s seek expert migration advice about when an expiry date applies and the options available to an applicant in those circumstances.

18. As the applicant does not meet Criterion 3001, the Tribunal is required to affirm the decision under review.

    DECISION

19. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

    Rosa Gagliardi
    Member