Shafqat (Migration)

[2023] AATA 1082

Shafqat (Migration) [2023] AATA 1082 (6 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shoaib Shafqat

CASE NUMBER:  2107320

HOME AFFAIRS REFERENCE(S):          BCC2021/299965

MEMBER:K. Chapman

DATE:6 April 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 06 April 2023 at 10:27am  

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –applicant did not hold a substantive visa at time of lodgement – visa application was not made within 28 days of the relevant day – been in Australia without a substantive visa over 4 years –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3004

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 25 May 2021, to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 1 March 2021. 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 criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Relevantly to this review, they include cl 600.223 which requires the applicant to satisfy the Schedule 3 criteria 3001, 3003, 3004 and 3005. The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223, due to not satisfying criterion 3001, as the visa application was made more than 28 days after the applicant’s last held substantive visa had ceased.

4. On 4 June 2021, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with his application for review. The Tribunal (differently constituted) initially scheduled review hearings by remote means in mid-2022, however the applicant insisted on an in-person hearing. Accordingly, the matter was re-constituted to the Brisbane Registry.

5. On 9 March 2023, the Tribunal (as presently constituted) invited the applicant to attend a review hearing in person scheduled for 10am on 5 April 2023 in Brisbane. The Tribunal is satisfied this invitation was properly sent to the applicant. On 31 March 2023, the Tribunal Registry wrote to the applicant seeking his response to the Hearing Invitation. The applicant has not replied to the Tribunal’s correspondence of either 9 or 31 March 2023.

6. On 5 April 2023, the applicant did not attend the Tribunal premises for the scheduled review hearing. No request for postponement of that hearing has been made. Indeed, no explanation for the applicant’s non attendance has been provided to the Tribunal. In the circumstances, the Tribunal is satisfied that the applicant was afforded a fair opportunity to attend a review hearing but chose not to do so. Therefore, in accordance with the statutory provisions, the Tribunal may now make a decision on the material before it. Following careful consideration, the Tribunal has decided to do so.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Relevantly to this matter, cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, he satisfies the Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

9. It is common ground, as recorded in the delegate’s visa refusal decision, that the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this review is whether the applicant satisfies the Schedule 3 criteria 3001, 3003, 3004 and 3005.

   Does the applicant satisfy the relevant Schedule 3 criteria?

   Criterion 3001

10. 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), as set out in the attachment to this decision. For present purposes, it is the last day the applicant held a substantive visa.

11. The delegate’s visa refusal decision, a copy of which was provided to the Tribunal by the applicant, indicates he last held a substantive Student Subclass 500 visa on 15 March 2019. The applicant applied for the Visitor Subclass 600 visa on 1 March 2021. Therefore, it is apparent his visa application was made well after 28 days from the relevant day. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. The Tribunal so finds.

    CONCLUSION

12. For the reasons outlined, the applicant does not satisfy criterion 3001 for the purposes of cl 600.223.

13. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed.

14. The Tribunal notes that the applicant has now been in Australia without a substantive visa since 16 March 2019, a period exceeding 4 years. Furthermore, the applicant appears to have unduly delayed finalisation of his application for review, by insisting on being invited to an in-person hearing, when he had no intention of appearing. Furthermore, the applicant’s review application has no prospects of success by operation of law. The Tribunal draws these matters to the attention of the Department for any consideration they wish to give to appropriate compliance measures.

    DECISION

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

    K. Chapman
    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.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

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

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3005     

    A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)this Schedule; or

    (b)Schedule 6 of the Migration (1993) Regulations; or

    (c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.