Sun (Migration)

[2022] AATA 1652

Sun (Migration) [2022] AATA 1652 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yongqi Sun

REPRESENTATIVE:  Ms Hong Li (MARN: 0850799)

CASE NUMBER:  2113995

HOME AFFAIRS REFERENCE(S):          BCC2021/1744128

MEMBER:Naomi Schmitz

DATE:12 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 12 May 2022 at 3:55pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – applicant completing final subjects – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 27 September 2021 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 August 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 at the time the applicant applied for the visa, the applicant was in Australia, but did not hold a relevant substantive visa and the applicant did not satisfy criterion 3001 in Schedule 3 to the Migration Regulations 1994 (the Regulations) which requires that the applicant lodge a visa application within 28 days of last holding a substantive visa.

4. 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.

5. 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.

6. On 11 October 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

7. On 22 April 2022 the Tribunal wrote to the applicant to invite the applicant to appear at a Tribunal hearing commencing at 9:30am on 18 May 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

8. On 28 April 2022 the applicant returned a signed response to hearing invitation form which advised that the applicant did not wish to participate at the hearing and consented to the Tribunal making a decision on the papers.

9. On 6 May 2022 the Tribunal considered the applicant’s email correspondence. As the applicant declined to participate at a hearing, on 6 May 2022, the hearing was cancelled and the applicant was notified of the hearing cancellation by email.

10. On 7 May 2022 the applicant provided the Tribunal with a copy of the applicant’s academic transcript; confirmation of enrolment in a Bachelor of Business Management at RMIT commencing on 1 July 2022 and ending on 31 December 2022 and a one page submission requesting that the Tribunal postpone its decision until December 2022 to allow the applicant to complete her remaining six subjects and sit her final exam in her Bachelor of Business Management course.

11. On 9 May 2022 the Tribunal advised that the Tribunal Member had carefully considered the applicant’s submission to postpone its decision and the documents submitted in support, however decided not to defer its decision. Given the large lapse of time, the Tribunal does not regard it as reasonable to postpone its decision for seven months. Further, the Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[1] The Tribunal advised it would consider any further material the applicant wished to submit until 11 May 2022. The Tribunal did not receive any further materials. The Tribunal has proceeded to decide the review application on the evidence available to the Tribunal. ^[2]

    [1] Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth)

    [2] Section 362B [Part 5] Migration Act 1958 (Cth)

12. For the following reasons, the Tribunal has decided 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).

    Does the applicant satisfy the relevant Schedule 3 criteria?

    Criterion 3001

14. 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.

15. The applicant submitted a statement dated 7 May 2022 to the Tribunal. It stated in April 2021 the applicant had ‘overlooked’ the expiry date of her previous Student visa (Subclass 500) due her to ‘negligence’. The applicant stated she lodged her Visitor visa which is the subject of this decision on ‘13 August 2021’. She stated she lodged the application for review at the Tribunal in order to stay in Australia lawfully to complete her Bachelor of Business Management course at RMIT and only needed seven additional months in Australia until the end of December 2022.

    FINDINGS and REASONS

16. The visa applicant was in Australia at the time she applied for the visa on 13 August 2021. 

17. As noted in the delegate’s decision record 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 applicant was an unlawful non-citizen.

18. The date the applicant’s last substantive visa ceased was noted in the delegate’s decision record, a copy of which was provided by the applicant to the Tribunal. The applicant’s last substantive visa was a Student visa (Subclass 500) which she last held on 1 April 2021.

19. The applicant therefore applied for the visa 134 days after she last held a substantive visa. This period exceeds the statutory 28-day period and as such the applicant cannot meet criterion 3001. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

20. The Tribunal therefore finds that the visa applicant failed to satisfy cl 600.223, as she did not hold a substantive visa at the time of application. She also did not satisfy criterion 3001, in that she did not lodge her application within 28 days of her last substantive visa, and therefore did not meet cl 600.223 requirements. 

21. For these reasons, the applicant does not satisfy criterion 3001 for the purposes of             cl 600.223.

22. 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

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

    Naomi Schmitz
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    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.