Vikram Singh (Migration)

[2022] AATA 433

Vikram Singh (Migration) [2022] AATA 433 (25 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vikram Singh

REPRESENTATIVE:  Mr Badrinath Thungathurthi

CASE NUMBER:  2104127

HOME AFFAIRS REFERENCE(S):          BCC2020/2907547

MEMBER:David Crawshay

DATE:25 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 25 February 2022 at 11:04am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made more than 28 days after last substantive visa held – statutory declaration outlining making and withdrawing visa applications – no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), 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 30 March 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 23 December 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 meet cl.600.223 because he did not satisfy Schedule 3 criterion 3001. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

4. The applicant was due to appear before the Tribunal at a hearing on 24 February 2022 at 1:00pm to give evidence and present arguments. The hearing was due to take place via telephone. These details were contained within an invitation sent to the applicant on 8 February 2022. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent him SMS reminders about the hearing five business days and one business day before the scheduled hearing.

5. On 22 February 2022, the applicant submitted a document titled “Medical Certificate” and dated the same date, which relevantly stated as follows:

   Mr Vikram Singh (DOB: [xx]/[xx]/1994) has medical conditions (recently diagnosed moderate house dust mite and grass pollan [sic] allergy). This causes his pysically [sic] exausted [sic] on daily basis. I have commenced him on treatment. He also feels low mood, depressed and anxious as he is unable to breath [sic] properly. In addition, his family in India recently suffered from COVID infection which made him more depressed. I have counselled him and advised to seek psychologist review if situation is not able to control. I have advised him follow up again in 4-6 weeks for assessment.

6. Records indicate that this document was “checked in” to the Tribunal’s systems at 3:53pm.

7. On the same date at 4:49pm, the Tribunal responded in the following relevant terms:

   The Tribunal has received a medical certificate of today’s date in respect of the applicant. While the certificate lists a number of medical conditions and symptoms, the Tribunal is not satisfied based on the contents of the certificate that the applicant is unable to participate in a telephone hearing.

8. No further correspondence was received as at the date of this decision.

9. The applicant was not available on his listed telephone number at or around the time of the hearing. Specifically, an officer of the Tribunal attempted to call the applicant on his listed number (04xx xxx x05) at 12:47pm, 12:48pm, 12:51pm, 12:56pm, 1:09pm and 1:15pm but these calls were not answered. Additionally, the Tribunal officer spoke to the applicant’s representative at 12:46pm, 12:48pm, 12:52pm, 1:09pm and 1:15pm but these calls went unanswered. Having reviewed its file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and two separate SMS reminders were sent to the review applicant about the hearing.

10. The Tribunal has considered if it is reasonable to proceed to a decision on the review without taking any further action to enable the applicant to appear before it, especially in light of the fact that he sent a document that purported to show that a postponement was needed. In this regard, although it was not expressly stated, the Tribunal took the document to be a request for postponement, albeit one which did not nominate a date for the new hearing.

11. In responding to the medical certificate of 22 February 2022 in respect of the applicant, the Tribunal did not purport to preclude any consideration of whether there were grounds for a postponement. Indeed, it made a point of stating in its response only that it was not satisfied of the inability of the applicant to submit to a telephone hearing “based on the contents of the certificate”. The Tribunal considers that it was reasonably open to the applicant to supplement this evidence with further evidence, either from him or from his treating medical practitioner, that substantiated his purported claim for a postponement. It considers that he had sufficient time to do so, the Tribunal having responded to his purported request within an hour of its being checked into its system.

12. The Tribunal has also considered that the applicant was unable to be contacted via his nominated telephone number on the day of the hearing. It has lastly considered that it has sufficient evidence to be able to proceed to a decision and does not require further information.

13. In these circumstances, and pursuant to s.362B of the Act, the Tribunal finds that it is reasonable to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it.

14. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether cl.600.223 is met. Clause 600.223 provides as follows:

    (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.

17. It does not appear to be in dispute that the applicant in the present case was in Australia at the time of application, being 23 December 2020. The Tribunal accepts that he was and that he is therefore required to satisfy cl.600.223 for the grant of the visas.

18. It also does not appear to be in dispute that the applicant did not have a substantive visa at the time of application. The delegate’s decision states that he applied for the present visa while on a Bridging C visa (WC-030). There is no evidence in front of the Tribunal to suggest otherwise. The Tribunal finds that the applicant was on a Bridging C visa when he applied for the present visa, and is therefore unable to satisfy cl.600.223(1). He must satisfy cl.600.223(2).

19. The delegate’s decision states that the applicant’s last substantive visa was a Temporary Graduate visa (VC-485), and there is no evidence in front of the Tribunal to suggest otherwise. The Tribunal finds that the applicant’s last substantive visa was not a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream, and that he satisfies cl.600.223(2)(a).

20. The issue now becomes whether the applicant satisfies cl.600.223(2)(b), which requires him to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

    Criterion 3001

21. 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), as set out in the attachment to this decision and is relevantly the last day when the applicant held a substantive visa.

22. The evidence in front of the Tribunal, including the delegate’s decision, is that the applicant ceased to hold a substantive visa following the expiry of his previous Temporary Graduate visa on 13 January 2020. The present visa application was lodged on 23 December 2020, which was more than 28 days after the relevant day.

23. Although no substantive information was received at the Tribunal stage, the Tribunal notes that the applicant had previously submitted a statutory declaration to the Department. This declaration, dated 16 March 2021, purported to give a timeline of the applicant’s activities in applying for and withdrawing from certain visa applications. Although this declaration and the timeline contained within it are useful for providing context to the applicant’s present predicament, the Tribunal considers that they do not show that the applicant satisfies the requisite Schedule 3 criteria, including Schedule 3 criterion 3001.

24. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

25. The applicant therefore does not satisfy cl.600.223(2)(b), which is a requirement for the grant of the visa.

    DECISION

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

    David Crawshay
    Member