Taylor (Migration)

[2022] AATA 1818

Taylor  (Migration) [2022] AATA 1818 (23 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Martin James Taylor

CASE NUMBER:  2109683

HOME AFFAIRS REFERENCE(S):          BCC2021/479516

MEMBER:Rachel Da Costa

DATE:23 May 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 23 May 2022 at 11:50am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – nomination for sponsorship withdrawn – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004

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 15 July 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 applicant is 31 years old and is a citizen of the United Kingdom. He most recently arrived in Australia on 15 December 2019 as the holder of a Working Holiday (subclass 417) visa. That visa ceased on 5 December 2020.

3. The applicant applied for a Visitor visa on 30 March 2021. On 15 July 2021, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because the applicant did not satisfy the Schedule 3 requirements as set out in criterion 3001 of the Migration Regulations 1994 (Cth) (the Regulations).

4. On 30 July 2021, the applicant applied for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision with his application for review.

5. The applicant was invited to appear before the Tribunal on 20 May 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly to this case, they include cl 600.223.

9. Clause 600.223 provides:

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

10. The delegate found that the applicant did not satisfy the requirements of Schedule 3 criterion 3001.

11. Criterion 3001 provides:

    (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.

12. The issue in this case is whether the applicant meets the requirements of criterion 3001.

    Background and visa history

13. The applicant is a citizen of the United Kingdom. He first arrived in Australia on 21 January 2017 as the holder of a Working Holiday (subclass 417) visa. He was granted a second Working Holiday visa on 22 May 2019, which ceased on 5 December 2020. At the time of his application for a Visitor visa he held a Bridging E (subclass 30) visa. He has a partner in Australia and shares a house with someone.

14. On 11 May 2021, the Department wrote to the applicant requesting more information about his Visitor visa application, noting that the last substantive visa he held ceased on 5 December 2020 and that there is no provision to grant a Visitor visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. The letter explained that in the applicant’s circumstances, this means he may not meet Schedule 3, criterion 3001. The applicant was invited to comment on this information.

15. The applicant responded in writing the same day and explained his situation. He stated that he had been offered nomination for sponsorship during his most recent Working Holiday visa but due to unforeseen circumstances that offer was withdrawn. He then sought the assistance of a person who he thought was a registered migration agent but who turned out to be a ‘scammer’ called Lee Hansol. The applicant provided the requested information to Lee Hansol so they could apply for the applicant’s visa on his behalf. The applicant was told that the information he had would be sufficient to meet the criteria for a subsequent Working Holiday visa. The applicant was told to wait, and when he tried to contact Lee Hansol to check the progress of his visa no further response was received. The applicant then sought the assistance of another agent. He found out through this agent that Lee Hansol had not submitted the information provided by the applicant. On the advice of this agent, the applicant withdrew his application as he understood that he would not have met the criteria for the visa anyway. The applicant wished to rectify his visa status and his agent suggested he apply for a Visitor visa. The applicant was not aware that he would not be eligible due to 28 days having passed since his last substantive visa ceased. The applicant is worried that he has been badly advised twice and he is concerned this is going to affect his migration history and further visa submissions in the future.

16. On 15 July 2021, the Department wrote to the applicant advising him that his application for a Visitor visa had been refused on the basis that he did not satisfy clause 600.223.

    Does the applicant meet the requirements of cl 600.223?

17. The applicant gave evidence to the Tribunal that he was living in Sydney at the time he applied for his Visitor visa on 30 March 2021 and that his Working Holiday visa ceased on 5 December 2020. Records of the Department of Home Affairs confirm this.

18. Therefore, the Tribunal finds that the applicant was in Australia at the time of application, and did not hold a substantive visa and the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. On that basis, the applicant must satisfy Schedule 3 criteria 3001 to be eligible for the visa.

    Does the applicant meet criterion 3001?

19. Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day. The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.

20. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 5 December 2020 and he lodged his application for a Visitor visa (which is the subject of this application for review) on 30 March 2021. Therefore, his application was not lodged within 28 days of the relevant day.

21. On this basis, the applicant does not meet criterion 3001, which means he cannot meet the criteria in cl 600.223.

    Conclusion

22. For the reasons given above, the Tribunal is not satisfied that the visa applicant meets the requirements of cl 600.223.

    DECISION

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

    Rachel Da Costa
    Member