Saucedo Laredo (Migration)

[2021] AATA 2857

Saucedo Laredo (Migration) [2021] AATA 2857 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Maria Pilar Saucedo Laredo

CASE NUMBER:  2017638

HOME AFFAIRS REFERENCE(S):          BCC2020/1643049

MEMBER:John Longo

DATE:23 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 23 June 2021 at 4:37pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 – Tourist stream – relevant substantive visa – arrival and departure from Australia on various visas – unaware of visitor visa expiration – application not lodged within 28 days of substantive visa ceasing – misunderstanding of visitor visa requirements – attempts to return to Peru and flight cancellations – referred for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 3, criterion 3001, cl 600.223, PIC 4014

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 4 August 2020 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, Miss Maria Pilar Saucedo Laredo, applied for the visa on 26 May 2020. 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 Miss Laredo did not satisfy cl 600.223 because at the time she applied for the visa she did not hold a relevant substantive visa and she did not satisfy criterion 3001 in Schedule 3 to the Migration Regulations 1994 (the Regulations).

4. Miss Laredo gave evidence by way of a telephone hearing on 16 June 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

6. Miss Laredo is a citizen of Peru. She first arrived in Australia as the holder of a TU 573 visa, which she applied for as an offshore applicant on 14 April 2013. The visa was granted on 20 May 2013 and Miss Laredo arrived in Australia on 29 June 2013. This visa ceased on 29 October 2015. Miss Laredo then applied for a TU 580 visa on 25 August 2015. This visa was granted on 29 October 2015 and ceased on 15 March 2019. As a holder of this visa Miss Laredo departed from and arrived in Australia several times, finally departing on 14 December 2018. Miss Laredo applied for a Visitor (Class FA) (Tourist) (Subclass 600) visa on 21 August 2019 which was granted on 29 June 2019. She arrived in Australia on 22 September 2019. This visa ceased on 22 December 2019. Miss Laredo then applied for a subsequent Visitor (Class FA) (Tourist) (Subclass 600) visa as an onshore applicant on 26 May 2020. This application was refused by the Department on 4 August 2020, and is the subject of this review.

7. Miss Laredo stated at the hearing that she did not know that her visa had expired in December 2019 as she had thought the visa expired in September 2020. She did not realise that she could only remain in Australia for three months at a time. Miss Laredo stated that it was the first time she had been granted a visitor visa and so was not aware of the requirements. Miss Laredo’s representative stated that she has a longstanding relationship with Australia through her sister and seeks a referral to the Minister for intervention.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The applicant 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 a Subclass 600 (Visitor) visa and so it was not one of the visas specified in cl 600.223. The issue is therefore whether the applicant satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001 which is set out in the attachment to this decision.

11. 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).

12. 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 the applicant’s substantive visa ceased on 22 December 2019 and the application for a further visitor visa was made on 26 May 2020.

13. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. The Tribunal notes that the applicant was unable to leave and return to Australia under her existing visa and wished to remain in Australia. However, there is no discretion available to take into account the applicant’s circumstances. The applicant does not meet the requirements of cl 600.223.

    OTHER ISSUES

    Consideration of request for referral to the Minister for intervention

14. Section 351 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 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

15. The written submissions filed on 9 June 2021 formally requested that the Tribunal refer the matter to the Minister for his consideration. It was submitted by the applicant’s representative that: ‘there are unique and exceptional circumstances in the applicant’s case, namely, the unfair or unreasonable result which would occur in her case with the application of relevant legislation’.

16. The applicant’s representative submitted that the unique and exceptional circumstances in this application were that Miss Laredo was unaware that her granted visitor visa (Subclass 600) permitted multiple entries but only a three-month stay period for each entry and therefore was unaware that she was unlawful until she sought migration advice about available options for undertaking further studies in Australia. Miss Laredo submitted that she then attempted to depart Australia and booked flights to return to Peru but these flights were cancelled and rescheduled three times: 18 March 2020; 31 March 2020; and 13 May 2020. Miss Laredo then applied for the present visa and was granted a bridging visa. She also attempted to book flights to return to Peru but was unable to return as there were no available flights due to the pandemic. Miss Laredo continued to book flights to return to Peru and did so on 28 March 2021 but this flight was subsequently cancelled. Miss Laredo has been refunded the cost of her ticket due to the prolonged inability to return to Peru.

17. The legal representative submitted that Miss Laredo’s non-compliance with her substantive visa requirements was an innocent misunderstanding due to unfamiliarity and influenced by her previous Student (Subclass 500) and Student Guardian (Subclass 580) visas which did not have multiple entry and shorter stay requirements. It was also submitted that Miss Laredo will be adversely affected by PIC 4014 in any future temporary visa applications, if she is to leave Australia in her present circumstances. Miss Laredo’s representative also emphasised her failed attempts to return to Peru which was not possible due to flight rescheduling and cancellations.

18. In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Direction of the President of the Tribunal entitled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s351, s417 and s501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

19. The Tribunal considers that the facts of this case suggest that there are circumstances whereby ‘the application of relevant legislation leads to [an] unfair or unreasonable result in the applicant’s case’, which is one of the examples of unique or exceptional circumstances listed in the Minister’s Guidelines. The Tribunal finds that the applicant could have applied for a visa while she held a substantive visa but was prevented from doing so only due to her misunderstanding of the expiration of her substantive visa. There appears to the Tribunal to be evidence that she could have maintained a lawful status but for this misunderstanding and has made numerous attempts to depart Australia but has been unable to do so due to the pandemic.

20. The Tribunal considers, as submitted by Miss Laredo’s representative, that a personal intervention by the Minister in this matter would have a positive effect on any subsequent visa application by Miss Laredo when considered by a delegate as her non-compliance would have to be viewed as ‘innocent’ and having been compounded by the global pandemic and the associated travel restrictions.

21. Accordingly, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

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

    John Longo
    

    Member

    
    ATTACHMENT – Extract from Migration Regulations 1994

    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.