Stark (Migration)

[2022] AATA 1810

Stark (Migration) [2022] AATA 1810 (27 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michael William Stark

CASE NUMBER:  2106796

HOME AFFAIRS REFERENCE(S):          BCC2021/26621

MEMBER:Bridget Cullen

DATE:27 May 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 27 May 2022 at 12.18pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – advice by agent that applicant could delay departure by applying for visa then for review – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 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 Home Affairs on 12 May 2021 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 18 February 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 delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because the applicant did not satisfy Criterion 3001.

4. The applicant appeared before the Tribunal on 26 May 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

7. 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

8. 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.

9. At the hearing, the applicant confirmed the accuracy of the relevant dates as reflected in the delegate’s decision record. The applicant lodged the visa application that is the subject of this review on 18 February 2021. At that date, the applicant held a WA010 Bridging Visa (Class A), which is not a substantive visa. The applicant last held a substantive TZ417 Working Holiday visa on 14 November 2020.

10. The applicant understood and conceded that his application for the visitor visa under review was lodged more than 28 days after he last held a substantive visa.

11. The applicant told the Tribunal that his “visa agent” told him to apply for a visitor visa at the height of Covid, which she also told him would be rejected as he was outside the 28-day window of time applicable to criterion 3001. The visa agent also allegedly said that when the Department inevitably rejected his visa application, that he could appeal to delay having to leave Australia, and that this was his “best option”. The Tribunal asked the applicant who his visa agent was as there is not one on record with the Tribunal. The applicant said that he did not actually engage the woman that gave him the advice.

12. The applicant said that he has flights booked to leave on the 13^th of July 2022 to return to the United Kingdom. He expressed concern that his flights were scheduled beyond the 35-day timeframe that he understood he would need to depart Australia within, as he appreciated that he would not be successful in this review. The Tribunal explained that this was a matter within the discretion of the Department, and not the Tribunal.

13. The Tribunal finds that applicant’s Visitor (Class FA) visa was lodged more than 28 days after he last held a substantive visa.

14. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy Schedule 3 criterion 3001. Therefore, the applicant does not satisfy cl 600.223.

15. 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

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

    Bridget Cullen
    Senior Member