Thapa Magar Sapkota (Migration)

[2018] AATA 444

Thapa Magar Sapkota (Migration) [2018] AATA 444 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sumitra Singh Thapa Magar Sapkota

CASE NUMBER:  1721027

DIBP REFERENCE(S):  BCC2017/3135514

MEMBER:Linda Symons

DATE:1 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2018 at 9:00am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Visitor visa application out of time – Ministerial intervention sought – No unique or exceptional circumstances

LEGISLATION

Migration Act 1958, ss 65, 351, 417, 501J
Migration Regulations 1994, Schedule 2 cl 600.223 Schedule 3 Criteria 3001, 3003, 3004, 3005

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 Immigration on 31 August 2017 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Home Affairs (the Department) for the visa on 29 August 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (the Regulations). Relevantly to this case, they include cl.600.223, which requires the applicant to satisfy the Minister that, if she was in Australia at the time of application and did not hold a substantive visa, the last substantive visa she held was not a subclass 403 (Temporary work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and that she satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.223 because she was not satisfied that she met the requirements of Schedule 3 criterion 3001. On 8 September 2017, she applied to the Tribunal for a review of this decision.

5. The applicant appeared before the Tribunal on 23 February 2018 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. The issue in this case is whether cl.600.223 is met, which 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 she held was not a subclass 403 (Temporary work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and that she satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

9. The records of the Department indicate that the applicant was in Australia at the time she filed her application for the Visitor visa. She has filed with the Tribunal a copy of the Department’s Decision Record dated 31 August 2017 which indicates that the last substantive visa she held was a subclass 573 Student visa that ceased on 15 March 2017. In these circumstances, she must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the Attachment to this decision.

   Is criterion 3001 met?

10. In order to satisfy criterion 3001, the application for the Visitor visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001(2), as set out in the Attachment to this decision.

11. The evidence before the Tribunal is that the last substantive visa the applicant held was a subclass 573 Student visa that ceased on 15 March 2017. Accordingly, the Tribunal finds that the relevant day is 15 March 2017.

12. The Tribunal finds that a valid application for a Visitor (Class FA) visa was made on 29 August 2017. As the visa application was not made within 28 days of the relevant day (15 March 2017), the Tribunal finds that the applicant does not satisfy criterion 3001. As she does not satisfy criterion 3001, the Tribunal does not consider it necessary to consider whether she satisfies the criteria in 3003, 3004 and 3005.

13. For the reasons given above, the Tribunal finds that the applicant does not satisfy cl.600.223.

14. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. Therefore, the decision under review must be affirmed.

    Request for Ministerial intervention

15. The applicant has made a written request to the Tribunal that her case be referred to the Minister for Ministerial intervention on the basis that there are compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to her.

16. The applicant has provided the Tribunal with a large volume of documents including a chronology of events, documents in relation to her studies in Australia and her immigration history and her Curriculum Vitae. The Tribunal has had regard to these documents.

17. The Tribunal has also had regard to the Minister’s Guidelines on Ministerial Powers (s.351, s.417 and s.501J). They indicate that cases that have one or more unique or exceptional circumstances may be referred to him for possible consideration of the use of his intervention powers. One such circumstance is that compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

18. In this case, the applicant was born on 12 January 1982 and is therefore 36 years old. The Tribunal has not been provided with any medical or psychological evidence and is therefore unable to assess whether she falls within these Guidelines. She is represented by a migration agent and should be able to make a request to the Minister for Ministerial intervention with his assistance and provide the Minister with relevant supporting evidence.    

    DECISION

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

    Linda Symons
    Member

    
    

    ATTACHMENT

    600.223

    (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 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.

    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.

    3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    3003If:

    (a)     the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)    on 31 August 1994, the applicant was either:

    (i)an illegal entrant; or

    (ii)the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)     the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

    (d)    there are compelling reasons for granting the visa; and

    (e)     the applicant has complied substantially with the conditions that apply or applied to:

    (i)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)any subsequent bridging visa; and

    (f)     the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004If the applicant:

    (a)     ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)    entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)     the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

    (d)    there are compelling reasons for granting the visa; and

    (e)     the applicant has complied substantially with:

    (i)the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)     either:

    (i)in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)     this Schedule; or

    (b) Schedule 6 of the Migration (1993) Regulations; or

    (c)     regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

    Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.