Soto (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse Mr Soto's application for a Visitor (Class FA) Subclass 600 visa. Mr Soto sought to have the Tribunal find that his application date was 29 June 2020, when he claimed to have made an initial, unsuccessful online application. However, he subsequently lodged a hard copy application which was received by the Department of Home Affairs on 14 July 2020. The Tribunal considered Mr Soto's own acknowledgment of the 14 July 2020 receipt date and his subsequent hard copy application as indicative of doubt regarding the validity of the initial online attempt, leading the Tribunal to conclude that the application date was indeed 14 July 2020.

The primary legal issues before the Tribunal were whether Mr Soto's application was validly made on 29 June 2020 or 14 July 2020, and consequently, whether he met the criteria for the Tourist stream of the Subclass 600 visa. Specifically, the Tribunal had to determine if Mr Soto satisfied clause 600.223 of the Migration Regulations 1994, which requires an applicant in Australia at the time of application to have held a substantive visa other than a specified temporary visa, or if not holding a substantive visa, to have had their last substantive visa not be a specified visa and to satisfy Schedule 3 criteria. Mr Soto was in Australia when he applied and held a Bridging (Class E) visa, not a substantive visa.

The Tribunal reasoned that an invalid online application does not constitute a valid application for the purposes of the Migration Act 1958 (Cth). Given Mr Soto's subsequent actions and acknowledgments, the Tribunal was not satisfied that the online attempt on 29 June 2020 was a valid application. Therefore, the application date was established as 14 July 2020. At that time, Mr Soto did not hold a substantive visa, and his last substantive visa had expired. Consequently, he did not meet the requirements of clause 600.223, nor the associated Schedule 3 criteria, leading to the affirmation of the delegate's decision to refuse the visa.