Takayama (Migration)

[2022] AATA 2082

Takayama (Migration) [2022] AATA 2082 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fumihiko Takayama

REPRESENTATIVE:  Mr Tony Tae-Soo Min (MARN: 1068924)

CASE NUMBER:  2103968

HOME AFFAIRS REFERENCE(S):          BCC2020/1921773

MEMBER:Scott Clarey

DATE:23 June 2022

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

Statement made on 23 June 2022 at 9:38am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – agent made application online within 28 days but was told to make paper-based application – no discretion to consider circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criterion 3001(2)

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 8 March 2021 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 16 July 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 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.

4. The applicant appeared before the Tribunal via teleconference on 23 June 2022. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages. The applicant was not represented at the hearing.

5. The Tribunal has had regard to information on both the Tribunal and Departmental files related to this case.

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

   Relevant background

7. The applicant is a 41-year-old citizen of Japan. He last arrived in Australia on 30 October 2019 on a UC subclass 457 Temporary Work (Skilled) visa valid until 12 June 2020. On 12 June 2020 this visa ceased. As was noted in the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), 12 June 2020 was the last day the applicant held a substantive visa in Australia. I note that it is not in dispute that the applicant was not the holder of a substantive visa on 16 July 2020 when the application under review was lodged.

   Tribunal hearing on 23 June 2022

8. At the hearing the applicant confirmed that the last substantive visa held, a subclass 457 visa, ceased on 12 June 2020. The applicant stated that his agent had made a previous application on 9 July 2020, but this application was made via the wrong means (online) and was deemed invalid by the Department. The applicant stated he received an email from the Department informing him of this on 13 June but this was in the midst of the Covid 19 pandemic and his agent was not in the office to receive it. The applicant stated that it was ‘essentially my fault that I forgot’. The applicant and his agent subsequently completed and lodged a paper application (the application under review), but this was not received by the Department of 16 July 2020.

9. I have had regard to the applicant’s explanations for why the application under review was not lodged prior to 16 July 2020, but I note that the Tribunal has no discretion in considering claimed reasons why an application was not validly made within 28 days of the relevant day. This was explained to the applicant at the hearing. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl. 600.223.

11. 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)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)   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.

12. The applicant was in Australia on 16 July 2020 when he applied for the subclass 600 visa under review. On the evidence before the Tribunal, it is not in dispute that he did not hold a substantive visa at that time. The last substantive visa the applicant held was a subclass 457 Temporary Work (Skilled) visa that ceased on 12 June 2020. There is no suggestion that the applicant was the holder of one of the visas specified in cl. 600.223(2)(a). The issue is therefore whether the applicant satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001. 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). In applicant’s circumstances, the relevant day is the last day he held a substantive visa.

13. The applicant’s last substantive visa ceased on 12 June 2020 and the application for the subclass 600 visa under review was made on 16 July 2020. On the basis of the evidence before it, the Tribunal therefore finds that Mr Takayama’s application was not lodged within 28 days of the relevant day. 

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

    DECISION

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

    Scott Clarey
    Member