Trappe (Migration)

[2022] AATA 1997

Trappe (Migration) [2022] AATA 1997 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mona-Lisa Trappe

REPRESENTATIVE:  Mrs Batiya Tichava

CASE NUMBER:  2109827

HOME AFFAIRS REFERENCE:               BCC2021/1229856

MEMBER:Rosa Gagliardi

DATE:7 June 2022

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 07 June 2022 at 11:37am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – family illness – compelling reasons – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 362
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001

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 13 July 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 visa applicant applied for the visa on 9 June 2021. The delegate refused to grant the visa on the basis that he/she found that the application for a Visitor (Class FA) Subclass 600 visa (Tourist Stream) was lodged more than 28 days after the applicant last held a substantive visa and therefore found the applicant does not meet Schedule 3 criteria 3001 of regulation 600.223(2). For that reason, the delegate found that the applicant does not meet the relevant criteria in clause 600.223 in Schedule 2 of the Migration Regulations.

3. 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.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 because at the time she applied for the visa, she did not hold a relevant substantive visa and did not satisfy 3001 in Schedule 3, as she did not apply for the visa within 28 days of expiry of the previous visa.

   The applicant’s engagement with the Tribunal

5. On 17 May 2022 the Tribunal wrote to the applicant at an address provided by her for the purposes of the review, to invite her to a hearing to have been held on Friday, 3 June 2022, at 2.30pm (EST).  In the invitation the Tribunal highlighted that it had considered all the material before it but it was not able to make a favourable decision on the basis of the information alone. 

6. The invitation letter of 17 May 2022 also highlighted that if the applicant was unable to attend the hearing, she should advise the Tribunal as soon as possible and that the date of the hearing would only be changed if the Tribunal were satisfied that the applicant had a very good reason for being granted an adjournment.  The invitation also advised that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it.

7. The applicant did not respond to the Tribunal’s hearing invitation and did not provide updated materials on the matters she wished to advance in terms of whether she met Criterion 3001 of Schedule 3. 

8. The Tribunal acknowledges that the ability to proceed to decision is only a discretionary one, and that careful thought should be given to the use of such discretion fairly.  The Tribunal considers, however, that it is not for the Tribunal to make her case for her.  The fact the applicant was reminded of the impending hearing on two occasions via SMS sent to a number provided by the applicant to the Tribunal for the purposes of the review, strongly persuades the Tribunal that all reasonable steps were taken to enable the applicant to appear before the Tribunal.

9. As the applicant did not link up with the Tribunal at the scheduled date and time the Tribunal rang the applicant and left a message on her phone to say the Tribunal had attempted to call her on several occasions to hold a hearing and that she should get back to the Tribunal as soon as possible with advice on whether she wished the Tribunal to proceed with the review.  At the time of writing the applicant has not responded.

10. In these circumstances, and pursuant to s.362 of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it. 

11. The applicant has provided the Tribunal with a copy of the Departmental decision for the purposes of the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the criteria for Criterion 3001 of Schedule 3, and ultimately meets cl.600.223. 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) and includes the last day when the applicant held a substantive visa. Specifically, cl. 600.223 requires:

    cl.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 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.

14. Criterion 3001 of Schedule 3 states:
    
             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.

15. The applicant lodged an application for a Visitor (Tourist) (subclass 600) visa on 9 June 2021.  Her previous substantive visa – a Graduate Work Stream (subclass 485) visa - had expired on 26 February 2021.  It is therefore not in contention that there had been more than 28 days after the applicant’s last substantive visa ceased and the date of lodgement of this application.

16. At a hearing the Tribunal would have explained to the applicant that there is no provision to grant a Visitor (Tourist) (subclass 600) visa to an applicant who applies for a visa more than 28 days after their last substantive visa ceased.

17. The Tribunal notes that at the time of application the applicant provided a flight itinerary as well as a letter from the applicant’s father and medical review letters for her father.  In addition, a submission was provided on behalf of the applicant by her migration agent addressing the circumstances which led to the applicant lodging a Visitor visa application after her last substantive visa had ceased.  The applicant decided to remain in Australia further to care for her father who had arrived in Australia on 9 March 2021 to undergo surgery and was at that time undergoing rehabilitation.

18. Had the applicant attended a hearing the Tribunal would have explained to her that while there may have been understandable reasons for her not having a substantive visa at the time of application, the Tribunal had no discretion to take into account any reasons that might appear compelling or compassionate.  The wording of the regulations does not permit the Tribunal to take into account difficult circumstances the applicant might have found herself in. 

19. At a hearing the Tribunal would have also explored with the applicant why, given she had applied for a visa in June 2021, she now required a further visa almost a year later.  Not that this matter would have changed the outcome of the application.  The Tribunal is required to apply the law as it is. 

20. Having considered all the evidence available to it, together with the regulations, the Tribunal is not satisfied that the applicant meets PIC 3001 for the purposes of cl.600.223.

    DECISION

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

    Rosa Gagliardi

    
    

    Member