Sharma (Migration)

[2021] AATA 2665

Sharma (Migration) [2021] AATA 2665 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vijay Sharma

CASE NUMBER:  2105367

DIBP REFERENCE(S):  BCC2020/2918956

MEMBER:Anne Grant

DATE:10 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 June 2021 at 11:49am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – application was made more than 28 days after the last substantive visa held by the applicant ceased –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 379

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 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 6 April 2021 to refuse to grant the applicant a Visitor (Tourist) (subclass 600) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 3 January 2021. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case, the visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

2. The delegate refused to grant the applicant the visa because the application was made more than 28 days after the last substantive visa held by the applicant ceased.  The delegate found that therefore the applicant does not satisfy the requirements of PIC 3001 and cl. 602.223 and therefore could not be granted the visa.

1. The applicant appeared before the Tribunal by telephone on 8 June 2021 to give evidence and present arguments.  The applicant was not represented at the hearing.

1. In a submission made to the Tribunal in writing on 27 April 2021, the applicant included the following information:

   My name is Vijay Sharma (Passport No N8720843). This is my written statement in support of my visa refusal appeal application. Below is a detailed account of my circumstances leading up to the visa refusal decision made by Department of Home Affairs.

   1.     Student Visa (500)

   I completed all my University courses towards Master in Engineering Science (Mechanical Engineering) on the 20th of November 2020. My student visa was due to expire on the 30th of November 2020. I wished to apply for Temporary Graduate 485 visa upon completion due to multiple reasons as stated below.

   After going through Covid 19 pandemic and economic slowdown, the jobs availability in engineering sector is bound to increase in Australia.

   I did not wish to leave a safe place in Australia during a global pandemic if there is a possibility of leading a healthy and rewarding life in Australia.

   It would be easier to secure a Mechanical Engineering job in Australia with an Australian Qualification

   2. Bridging Visa E Application

   Unfortunately, I could not gather all the necessary documents to lodge the 485 Visa before my student visa expired. I received advice to apply for Bridging Visa E (BVE) so that I could get enough time to gather the necessary documents and keep my status "Legal" in Australia.

   Figure 1 – Screenshot 1 of BVE page on DIBP Website

   Figure 2 - Screenshot 2 of BVE page on DIBP Website

   The description of BVE visa on DIBP website fit my situation and my needs perfectly at the time as I wanted to stay in Australia while keeping my status “Legal” after expiry of my student Visa as I arranged documents to apply for another substantive visa (Temporary Graduate 485). After my due diligence, I applied for BVE on 1st December 2020 (at midnight) as soon as my Student Visa expired.

   3. Conflicting suggestion from DIBP and Technical Problems with immiaccount

   I received a call from Home Affairs on 23rd December 2020 and the person I spoke with suggested me to apply for Visitor Visa and withdraw the BVE application if 485 Visa is what I intend to apply in the future because I would need to be on a substantive visa to be able to apply for 485 Visa.

   I started 600 Visa application on my “immiaccount” but could not proceed with the application due to a technical error. The proof of technical error is in the screenshots below.

   Figure 3 - Incomplete Visitor Visa Application in immiaccount

   I called Home Affairs again on 28th December 2020 since DIBP was closed during 24th December 2020 and 27th December 2020 (Christmas holidays). I informed the person I spoke with about the technical error and was advised to contact technical support from my immiaccount and they would be able to provide help instantly.

   I took the advice and tried to reach the technical support but realised there is no “telephone helpline” for technical support. The only way to reach technical support is by raising a support ticket. I raised the support ticket but did not receive response of any kind.

   Figure 4 - Response to Technical Support Ticket raised on 28th December 2020

   I contacted Home Affairs again the same day as I did not want to go over the 28 days period. The person I spoke with advised me to launch a paper visa application. I prepared paper visa application after speaking to Home Affairs on 28th December 2020 sent it via Express Australia Post on 29th Dec 2020.

   I did not receive any communication from Technical Support until 30th December 2020 informing me to contact status resolution Area.

   4. BVE Grant

   On 4th Jan 2021, I received a call from Home Affairs asking for details about my situation and was granted BVE a few hours after the call. I was also informed that my BVE visa will be linked with my Visitor Visa application and that I would be able to apply for 485 Visa once the Visitor Visa is granted.

   I have been on BVE since 4th of Jan 2021.

   5. Personal Appeal

   I wish to stress on the fact that I made every attempt to keep my status “legal” in Australia by applying for BVE the moment my Student Visa expired. I was contacted by Home Affairs 23 days after submitting my BVE application. The person I spoke with provided me valuable guidance that

   BVE would not help me to apply for 485 Visa as I would need a substantive visa to be able to apply for 485 Visa and that I must apply for 600 Visa before the 28 days period. I tried to lodge 600 Visa the same day, but I could not, due to the technical error. I had no way of solving this issue by myself as Home Affairs was closed during the Christmas period from 24th December 2020 to 27th December 2020. I contacted Home Affairs on 28th of December 2020 (28 days since my student visa expired) and was suggested to raise a technical support ticket and that they would help solve the issue as soon as possible. By the end of day, I called Home Affairs again as I was not willing to go over the 28 days period. I was suggested to lodge a paper application for 600 Visa. I sent the 600 Visa application the next morning as soon as the Post Office opened.

   I made numerous attempts to not breach the 28 days period and if it were not for the technical problem I was facing, I would have submitted the 600 Visa Application on the 23rd of December 2020 (24 days since my Student Visa expired) i.e., the same day I received call from Home Affairs about my BVE visa application.

   Thanking you in anticipation of a positive outcome to this application.

2. The Tribunal has considered the information in the applicant’s submission.  At hearing, the applicant confirmed the information given eloquently and in detail in that submission above which explained the manner in which his attempts to apply for a new visa within the 28 day period  were unsuccessful; largely due to the Christmas shutdown period and also delays in support at the Department getting back to him about online difficulties lodging the visa application.  He also felt that the website provided ambiguous information about how it was appropriate to apply for a visitor visa ‘while you finalise your application for a substantive visa’.   The Tribunal accepts the applicant’s evidence about his genuine efforts to apply for a new visa within the statutory period.

3. The Tribunal accepts that the applicant genuinely intended to and took steps to apply for a visitor visa within the 28-day period so that he could apply for a Temporary Graduate visa.  Nonetheless, the applicant acknowledged, and the Tribunal is satisfied that the visa application under review was lodged on 3 January 2021 which is more than 28 days after his TU-500 Student visa had expired on 30 November 2020. 

CONSIDERATION

1. Clause 602.223 of the Migration Regulations (attached at the end of this decision) applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, and the visa was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The applicant must also satisfy all of the criteria in Schedule 3 clauses 3001, 3003, 3004 and 3005. As discussed with the applicant at hearing, there is no discretion within this part of the legislation for a decision maker to waive or vary these requirements, regardless of the applicant’s circumstances.

2. The issue in this case is whether the applicant satisfies the criteria in 3001 and therefore the requirements in cl.602.223.

1. In the present case, the applicant did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.

   Is criterion 3001 met?

1. 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 cl.3001(2), as set out in the attachment to this decision.  That is 28 days from the date that the applicant last held a substantive visa.

1. On the information before it, the Tribunal finds that the last substantive visa held by the applicant was a TU-500 Student visa which expired on 30 November 2020. The present application for a visitor visa was made on 3 January 2021.

1. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

1. For these reasons, the applicant does not satisfy cl.602.223.

1. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review will be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) Visitor (Tourist) (subclass 600) visa.

Anne Grant  Member

ATTACHMENT

Migration Regulations 1994

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.

…

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.

3005A 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.

Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non-citizen when he or she was born shall be taken to have entered Australia when he or she was born.