Soto (Migration)

[2021] AATA 2851

Soto (Migration) [2021] AATA 2851 (23 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Norberto Joaquin Soto

CASE NUMBER:  2017907

DIBP REFERENCE(S):  BCC2020/1905182

MEMBER:Naomi Schmitz

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 July 2021 at 11:37 am (VIC time)

DATE OF WRITTEN RECORD:                4 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 04 August 2021 at 7:54am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made with 28 days of holding last substantive visa – invalid online application made within time, followed by valid hard copy application made out of time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3001

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 November 2020 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 July 2021, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application to the Administrative Appeals Tribunal to review the decision made by a delegate of the Minister for Home Affairs on 23 November 2020 to refuse to grant the visa applicant Mr Soto’s application for a Visitor (Class FA) Subclass 600 visa.

4. The visa applicant applied for a Visitor visa on 14 July 2020. During the hearing, the visa applicant gave oral evidence that he initially made an invalid on-line visa application on 29 June 2020 and subsequently lodged a hard copy visa application which was received by the Department of Home Affairs on 14 July 2020. Prior to the hearing the visa applicant provided a written statement (undated) to the Tribunal acknowledging the Department of Home Affairs ‘received’ his visa application ‘on 14 July 2020’. The date of application was also referred to in the delegate’s decision record which the visa applicant provided to the Tribunal and which the Tribunal referred to as a matter of procedural fairness pursuant to s359A of the Migration Act 1958 (Cth). The visa applicant submitted to the Tribunal that it should find his date of application as 29 June 2020, given this was when he claimed to have initially attempted to lodge his visa application, however as it was not successful the Tribunal is not satisfied that it was a valid application. Furthermore, the visa applicant by virtue of his conduct in subsequently lodging a hard-copy application must have had some doubts as to the validity of the on-line application and on his own evidence acknowledged the Department received his visa application on 14 July 2020. The Tribunal therefore finds the visa applicant applied for the visa application on 14 July 2020.

5. 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.

6. The delegate refused to grant the visa on the basis that Mr Soto did not satisfy cl 600.223 because at the time he applied for the visa he was in Australia and did not hold a substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

7. If an applicant is in Australia at the time of application, to satisfy cl 600.223 the applicant must either:

   ·Have held a substantive visa other than a specified substantive temporary visa; or

   ·If they did not hold a substantive visa, their last substantive visa must not have been a specified visa and they must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

8. Mr Soto was in Australia at the time he applied for the visa.

9. At the time of application, Mr Soto did not hold a substantive visa, but held a WE-050 Bridging (Class E) visa which he had held since 6 June 2020. The visa applicant gave oral evidence of his visa status at the time of application. It was also confirmed in documentation provided by the visa applicant including the delegate’s decision record and a freedom of information document. 

10. As such, the issue in the present case, is whether the applicant satisfies the Schedule 3 criteria, specifically criterion 3001. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. Relevant to this matter, the “relevant day” is defined in 3001(2), as being the last day you ceased to hold a substantive visa or criminal justice visa.

11. During the hearing, Mr Soto gave oral evidence that his last substantive visa was a Visitor (Class FA) Subclass 600 visa which he last held on 2 June 2020. The date the last substantive visa ceased was noted in the delegate’s decision record, a copy of which was provided by the visa applicant to the Tribunal.

12. The visa applicant therefore applied 42 days after he last held a substantive visa.

13. This period exceeds the statutory 28-day period and as such the visa applicant cannot meet criterion 3001.

14. The Tribunal therefore finds that the visa applicant failed to satisfy clause 600.223 as he did not hold a substantive visa at the time of application. He also did not satisfy criterion 3001 in that he did not lodge his application within 28 days of his last substantive visa, and therefore does not meet the requirements of cl 600.223.

15. For these reasons the Tribunal affirms the decision not to grant the visa applicant, Mr Soto, the Visitor (Class FA) visa.

    DECISION

16. The Tribunal affirms the decision under review.

    Naomi Schmitz
    Member