Sutrisno Sastroadjijoyo (Migration) - [2022] AATA 2957

Sutrisno Sastroadjijoyo (Migration) [2022] AATA 2957 (20 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Awandi Sutrisno Sastroadjijoyo
REPRESENTATIVE:  Ms Karyn Anderson
CASE NUMBER:  2200677
HOME AFFAIRS REFERENCE(S):          BCC2021/2128941
MEMBER:Jane Marquard
DATE:20 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 20 July 2022 at 12:30pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – period of unlawful residence – impact of the COVID19 pandemic – travel restrictions – compassionate circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criteria 3001, 3003-3005
CASES
BET16 v MIBP
SZRHA v MAIC [2013] FMCA [2016] FCCA 3165
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 January 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant is a man from Indonesia. He first arrived in Australia on 19 November 2018 on a Visitor (FA 600) visa. He departed on the date of expiry of the visa, 17 February 2019. He returned to Australia on 30 August 2019 on a further Visitor (FA 600) visa. This visa expired on 26 November 2019 and he departed on that day. The applicant was granted a further Visitor (FA 600) visa and returned to Australia on 4 February 2020. This visa ceased on 4 May 2020. The applicant remained in Australia unlawfully until 19 March 2021 when he was granted a bridging visa.
The visa applicant applied for the visa the subject of this review on 4 November 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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, cl 600.223 requires that if the applicant was in Australia at the time of application and did not hold a substantive visa, he must satisfy Schedule 3 criteria, including criterion 3001. Criterion 3001 requires that an applicant apply for the visa within 28 days of the expiry of the substantive visa.
The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the applicant did not satisfy cl 600.223 of Schedule 2 to the Regulations because at the time he applied for the visa he did not hold a relevant substantive visa and he did not satisfy criterion 3001 in Schedule 3 to the Regulations.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 2957
Decision Date: 20 July 2022

CaseChat Overview and Summary

The applicant, Sutrisno Sastroadjijoyo, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal to grant him a Visitor (Class FA) visa, subclass 600. The core of the dispute concerned whether the applicant met the eligibility criteria for the visa, particularly in light of his period of unlawful residence in Australia and the impact of COVID-19 related travel restrictions.

The primary legal issue before the court was whether the applicant satisfied criterion 3001 of the relevant regulations, which pertains to the timing of visa applications following a period of unlawful residence. This criterion requires an applicant to have made their application within 28 days of the "relevant day," a term defined in the Migration Regulations 1994 (Cth). The court also implicitly considered the application of compassionate circumstances or the impact of external factors, such as the pandemic, on the applicant's ability to meet this criterion.

The court reasoned that the applicant had not made his visa application within the prescribed 28-day period following the "relevant day." Consequently, he failed to satisfy criterion 3001, which is a prerequisite for meeting the requirements of clause 600.223 of Schedule 2 to the Migration Regulations 1994 (Cth). The AAT Member, Jane Marquard, affirmed the delegate's decision not to grant the visa. The Tribunal's decision was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, the applicant does not meet the requirements of cl 600.223 of Schedule 2 to the Regulations. DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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