Singh (Migration)

[2023] AATA 1540

Singh (Migration) [2023] AATA 1540 (14 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kulwinder Singh

CASE NUMBER:  2203606

HOME AFFAIRS REFERENCE(S):          BCC2022/373835

MEMBER:Wendy Banfield

DATE:14 March 2023

PLACE OF DECISION:  Canberra

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

Statement made on 14 March 2023 at 3:59pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa – Schedule 3 criteria – factors beyond applicant’s control – processing of BPAY payment – payment cut-off times – applicant’s responsibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criteria 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 4 March 2022 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 16 February 2022. 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 the applicant did not meet cl 600.223 because they were not satisfied there were factors beyond the applicant’s control preventing them from lodging the current Visitor (Tourist) (subclass 600) visa application while holding a substantive visa. Therefore, the delegate found the applicant did not satisfy Schedule 3 criterion 3004 which is required to meet sub-regulation 600.223(2).

4. The applicant appeared before the Tribunal on 8 March 2023 to give evidence and present arguments.

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

6. The following evidence was provided to the Tribunal prior to the hearing:

   ·     Notification and decision of the Department of Home Affairs (the Department) dated 4 March 2022.

   ·     Applicant’s written statement.

   ·     BPAY receipt in the name of Kulwinder Singh dated Saturday 5 February 2022.

   ·     Department of Home Affairs Acknowledgement of Application and Request for Health Examination dated 7 February 2022.

7. In the applicant’s written statement, the following explanation was provided:

   I had applied for an extension of my visitor visa onshore on 04/02/2022 while holding a substantive visa and made the payment on 05/02/2022 using a bpay, before the date of my visa expiry. Officer, although the bpay was paid before the expiry of the visa cessation, we were not aware that it takes 3 to 7 days for the bpay to get cleared. Our intention to lodge the visa on time was very clear and we did not want to breach any visa conditions. The clearing of bpay is factor which is not in our control, it was clearly a circumstance which was beyond my control and I could not do anything to expedite the payment. I would request the member to waive the Schedule 3 condition for me in accordance to 3004 (c) of Migration Regulations. I would like to bring to your attention that an Acknowledgment of application and a medical examination request was also generated for which a booking was also made for the end of April.

8. The applicant referred in his statement to the COVID-19 pandemic and resulting travel restrictions as a reason for his visitor visa application. He requested a favourable decision to be able to spend more time with his family in Australia.

9. During the Tribunal hearing the applicant gave the same explanation about the circumstances surrounding his visa application, in particular, the use of BPAY to pay the fee for the application. The applicant has claimed not to have been aware that BPAY payments can take several days to process. He acknowledged his previous visa ceased on 6 February 2022 and the BPAY payment was made on 5 February 2022, one day prior.

10. Regarding his reasons for making a further visa application, the applicant stated one of his daughters is attending school in Australia and his wife is accompanying her as a guardian. His youngest daughter is also onshore currently. When asked why he still wants to be granted a further visitor visa, the applicant explained his wife’s nephew was hospitalised from birth and has disabilities that require carers. The applicant said his wife had been assisting her nephew and the child’s mother. He claimed that without his and his wife’s assistance, their nephew would go into foster care. The applicant advised he has two children, and his brother-in-law has three.

11. The applicant confirmed he arrived in Australia on 28 February 2020 and has been onshore for three years. According to the applicant’s evidence, his wife’s nephew is making progress and the mother is doing better so he would like to stay for five or six months more. His additional reasons are that his wife is learning to drive but does not currently and their daughter’s school is six kilometres away. The applicant claimed he is supporting his family here in Australia but has an agricultural business in India to return to. The applicant indicated he does not want to stay in Australia permanently.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

14. In the present case, 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 case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.

    Does the applicant satisfy the relevant Schedule 3 criteria?

    Criterion 3001

15. 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), as set out in the attachment to this decision.

16. The applicant last held a substantive Tourist visa which ceased on 6 February 2022. The applicant lodged the application for a FA600 Visitor- Tourist Stream visa which is the subject of this review on 21 February 2022.

17. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Criterion 3003

18. Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa and, on 31 August 1994, was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

    Criterion 3004

19. Criterion 3004 applies to an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not subsequently been granted a substantive visa.

20. It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa and that the applicant has complied substantially with the conditions applicable to the last of any entry permits, substantive visas and any subsequent bridging visa held by the applicant.

21. In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and 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 further entry permit, while the holder remained in Australia.

22. The Tribunal assessed whether the applicant meets the requirements of criterion 3004. The applicant’s last substantive visa ceased on 6 February 2022. Submissions were made in writing and orally explaining why the applicant is not the holder of a substantive visa. The applicant applied for a visitor visa and made payment on 5 February 2022.  A BPAY receipt was submitted in evidence that confirms the payment was made on that date. However, the date of the payment is a Saturday, not a business day, and it was not processed and received by the Department until the next business day, Monday, 7 February 2022. The applicant received a notice confirming receipt of the application on 7 February 2022 which was after his previous substantive visa had ceased. It was claimed the processing of the applicant’s payment via BPAY was a factor beyond his control.

23. The Tribunal considered the submissions and arguments made in this case and finds it was the applicant’s responsibility to ensure the visa application fee was paid before his last substantive visa ceased. This was necessary to ensure the visa application was valid. In the circumstances of this case the applicant paid online via BPAY, and a receipt was issued by Westpac. Banks such as Westpac that are members of the BPAY scheme publish payment cut-off times that the applicant needed to be aware of if he chose to pay by that method. It was open to him to apply for a further visa at an earlier date, to pay by an immediate method or to pay via BPAY on a banking business day. The applicant chose to pay for his application on a Saturday when the next banking business day was the following Monday. Therefore, it was not the case that the applicant did not hold a substantive visa because of factors beyond his control. For this reason, the applicant does not satisfy criterion 3004.

24. As the Tribunal has not accepted the applicant did not hold a substantive visa because of factors beyond his control, the remaining requirements to satisfy criterion 3004 have not been considered.

25. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl 600.223.

26. 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.

    DECISION

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

    Wendy Banfield
    Member