Toledana (Migration)

[2022] AATA 1952

Toledana (Migration) [2022] AATA 1952 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Catherine Toledana

CASE NUMBER:  2107565

HOME AFFAIRS REFERENCE(S):          BCC2021/1098520

MEMBER:Joseph Lindsay

DATE:9 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Class FA Subclass 600 Visitor visa

Statement made on 9 June 2022 at 2:51pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – Department delayed notifying applicant of an invalid application – impact on applicant’s employer – factors beyond the applicant’s control – compelling reasons – impact of the COVID19 pandemic – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001; Schedule 4, Public Interest Criterion 4014

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 9 June 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant attended the Tribunal by audio on 9 June 2022 to give evidence and present arguments. The applicant had requested that two witnesses, Mr Ivan Punzalan and Mr Micah Biggs, participate in the hearing. However, the applicant indicated to the Tribunal that she was happy to have the hearing without the participation of the two witnesses. The applicant was assisted by an interpreter. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

4. In the hearing, the applicant made admissions that she lodged an application for an FA600 Visitor- Tourist Stream visa on 14 May 2021 and that she last held a substantive visa that ceased on 15 March 2021.

5. The Tribunal put to the applicant that on 27 May 2021 the Department received a response from the applicant’s representative admitting that the applicant understands that she has not held a substantive visa within 28 days of her visitor visa application, hence she may not meet the Schedule 3 criterion 3001.

6. In response, the applicant made admissions that she lodged an application for an FA600 Visitor- Tourist Stream visa on 14 May 2021 and that she last held a substantive visa that ceased on 15 March 2021.

7. The Tribunal spoke to the applicant about her representative’s response to the Department that stated:

   The applicant self-lodged a Graduate visa subclass 485 on 1 March 2021. With no representation, she was not aware that her application was invalid for not meeting Item 1229(3)(k) of Schedule 1, given her occupation is on STSOL. She was notified by the Department via email, on 31 March 2021 that her application is invalid. We note that this was 30 days after she has lodged her visa application. In addition, this was also 15 days after her substantive visa had expired.

   ………………..

   We submit that, notifying a visa applicant, 1 month after lodgement of their application is not doing so in a timely manner as instructed in PAMS. We further submit that, despite the visa applicant lodging her visa application, 2 weeks before her visa expiry, the Department failed to notify her of the invalid application before her visa expiry. The written notification was sent to the applicant on 31 March 2021, which is 2 weeks after her visa had already expired. No oral notifications were attempted.

   …………………

   The visa applicant confirmed that she did not receive any phone calls or missed calls from the Department to notify her of the invalid application. She had only learned about the invalid application when she received the email from the Department on 31 March 2021.

   The applicant accepts that she is responsible for ensuring she maintains a valid visa in Australia. This is why she made sure to lodge an application with ample time prior to her visa expiry. She was granted a Bridging Visa A and when she received the notification, it notified her that her Bridging Visa was still valid until 5 May 2021 and so she understood that she had until this date to apply for a further visa. Understandably, she does not have the technical knowledge of Schedule 1, Schedule 3 requirements and the effects of PIC 4014.

   On the understanding that she had until 5 May 2021 to address her visa matter, she sought professional assistance before this date. However, she was not aware that she had to lodge a further visa, before 12 April 2021, which is 28 days after the expiry of her substantive visa, and she sought professional advice after this date.

   The applicant is a skilled architectural draftsperson. She was working in Australia on a critical engineering project as a draftsperson/Modeller. Her employer highly regards her, and her leaving the workplace had a significant impact on the project. She would’ve had an opportunity to be sponsored under TSS by her employer.

   We submit that, if the visa applicant were notified of her invalid application in a timely manner, in accordance with PAM instructions. She would not be in this position today.

   If she were notified, at least before her visa expired, she would have ample time to address her visa matters. In addition, she would not be facing PIC 4014 should she return home.

   The visa applicant is from Philippines, which currently has the second highest number of new COVID-19 cases in Southeast Asia. With its weak public health system and poor quarantine facilities, it is not safe for the applicant to go back at this stage. The applicant has ample savings and wishes to remain in Australia as a visitor, and finally have time to do tourist activities subject to covid restrictions. Here she feels safe, and would like to postpone going back to the Philippines until the situation improves.

   Whilst the visa applicant may not meet Schedule 3001, these are unprecedented times, and we ask the case officer to consider what might be an unusual decision.

   We ask the case officer under compelling and compassionate circumstances to allow the visa applicant to obtain a substantive visa and not be subjected to PIC 4014.

8. In response, the applicant indicated that the information in her representative’s response to the Department was correct.

9. In consideration of the above, the Tribunal accepts that the applicant applied for the Class FA Subclass 600 Visitor visa on 14 May 2021, which is not within 28 days after the last day she held a substantive visa that ceased on 15 March 2021, and she therefore does not satisfy Criterion 3001.  Accordingly, the Tribunal finds that the applicant does not meet cl.600.223 and is therefore unable to meet the criteria for the grant of the Class FA Subclass 600 Visitor visa.

10. The Tribunal accepts that the applicant self-lodged an application for a Graduate visa subclass 485 on 1 March 2021. The Tribunal accepts that the applicant was not initially aware that her application was invalid. Tribunal accepts that the applicant received notification that her Graduate visa subclass 485 application was invalid after her substantive visa had expired.

11. The Tribunal accepts that the applicant did not receive any phone calls or missed calls from the Department to notify her of the invalid application.

12. The Tribunal accepts that the applicant had an honest but mistaken belief that she had until 5 May 2021 (the expiry date for the Bridging Visa) to address her visa matter. The Tribunal accepts that the applicant was not aware that she had to lodge a further visa, before 12 April 2021, which is within 28 days after the expiry of her substantive visa.

13. The Tribunal accepts that the applicant is a skilled architectural draftsperson, and that she was working in Australia on a critical engineering project as a draftsperson/Modeller. The Tribunal accepts that the applicant is highly regarded by her employer. The Tribunal accepts that this situation has had an adverse impact on the applicant in respect to her employment prospects in Australia. The Tribunal accepts that the applicant has concerns about the effects of Covid-19 in her country of origin, The Philippines, at this time.

14. However, the Tribunal accepts that the applicant understands that her circumstances do not meet Schedule 3001.

15. Regretfully, the Tribunal has no discretion in this matter as the applicant clearly does not meet a mandatory requirement for the grant of the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Class FA Subclass 600 Visitor visa.

    Joseph Lindsay
    Member