Sy (Migration)

[2021] AATA 4265

Sy (Migration) [2021] AATA 4265 (2 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jenifer Balingit Sy

CASE NUMBER:  2017525

HOME AFFAIRS REFERENCE(S):          BCC2020/1577703

MEMBER:Moira Brophy

DATE:2 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 02 September 2021 at 9:51am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – no response to the hearing invitation – Schedule 3 criteria – not holder of substantive visa at time of application – whether beyond the applicant’s control – inattention to visa requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Condition 3004

CASES
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

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 19 November 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 19 May 2020. 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 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, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223 because he was not satisfied the applicant satisfies the Schedule 3 requirements as set out criterion 3004.

5. On 17 August 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a telephone hearing on 1 September 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

6. On 19 August 2021 the Tribunal was contacted by a person (Keith) who advised the applicant had departed Australia. The Tribunal forwarded to the applicant at her nominated email address a Withdrawal form for the applicant to complete. There was no response.

7. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

8. No response to the hearing invitation was received the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with: s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   BACKGROUND

10. The applicant is a 32-year-old national of the Philippines who first arrived in Australia on 1 June 2014 as the holder of an FA-600 Visitor visa. She departed on 22 November 2014. She was granted another FA-600 visa on 25 November 2019 and arrived in Australia again on 10 February 2020 as the holder of an FA-600 visa which expired on 10 May 2020. She was granted WC-030 Bridging C visas on 19 May 2020 and again on 17 February 2021. She departed Australia 5 June 2021.

11. In support of this application the following documents were provided to the Department:

    ·An undated letter of reference confirming the applicant is an employee of Union Steel Bars & Construction Supply.

    ·Certified copy of the applicant’s passport issued in the Philippines on 23 March 2019.

    ·Letter and policy certificate dated 20 September 2019 from HBF confirming the applicant’s overseas health care cover.

    ·Commonwealth Bank Term Deposit Reinvestment Notice dated 3 March 2020 in the name of Victoria Spice.

    ·Applicant’s birth certificate.

    ·Copy of the applicant’s birth certificate.

    ·Undated letter from the applicant to the Department requesting a decision on her visa application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case whether the applicant Miss Jenifer Balingit Sy meets the requirements of cl. 600.223.

13. That clause provides:

    (1)If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not:

    (a)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    (b)  a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

    (2)If the applicant was in Australia at the time of application, and did not hold a substantive  visa:

    (a)  the last substantive visa the applicant held was not:

    (i)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    (ii)  a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; and

    (b)  the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

14. Miss Sy was in Australia at the time she applied for the visa. She did not hold a substantive visa at that time. The last substantive visa she held was a FA600 Visitor – Tourist visa and so it was not one of the visas specified in cl. 600.223. The issue is therefore whether Miss Sy satisfies the Schedule 3 criteria. Miss Sy’s last substantive visa ceased on 10 May 2020 and she lodged this application on 19 May 2020. The relevant criterion in this case is therefore criterion 3004.

15. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

16. The Tribunal must determine whether the applicant was not the holder of a valid visa because of circumstances beyond her control and whether she complied substantially with the conditions of her last substantive visa; the FA600 Visitor – Tourist visa granted on 14 May 2018.

17. In respect of the reasons she had ceased to hold a substantive visa the applicant explains that the email seeking information had been sent to an email she shared with another person and the other person had not passed the email onto herself.

18. In considering whether these constituted factors beyond the applicant's control, the Tribunal has had regard to the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, which involved a Subclass 457 visa and Sch. 3 criterion 3004. While the application in that case was dismissed by the Court, the judgement provides guidance on the interpretation of the test of factors beyond the control of a person. Smith FM, referring to the judgement of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17] that two useful points emerge from that case:

    The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense "subjective", rather than being directed at deciding what would have been beyond the control of an abstract or "reasonable" person. A second point, is that what is "beyond control" should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.

19. The Tribunal notes that this is not the case involving error by the department or another agency about the visa validity date or any advice given. The Tribunal finds that the applicant ceased to hold a substantive visa because of her inattention to the requirement to be a substantive visa holder and ensure applications for further visas were lodged before the expiry of the visa she was holding. While she submits the fact the email was not passed on to her this is a matter she should have taken care of, this was not beyond the visa applicant's control, in the Tribunal's view. It was within the applicant's control to be aware of the department's visa requirements and to ensure compliance with those requirements.

20. The Tribunal accepts that the applicant was affected by her personal circumstances at the relevant time, however, the Tribunal does not accept however that the effect of this was such that she could not be expected to be aware of the length of time during which the initial visa was in effect.

21. This being the case, the applicant does not satisfy the provisions at item 3004(c) which apply here and cannot meet the prescribed criteria at cl. 600.223.

    DECISION

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

    Moira Brophy
    Member