Wangdi (Migration)

[2022] AATA 2326

Wangdi (Migration) [2022] AATA 2326 (27 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tshering Wangdi

CASE NUMBER:  2119063

HOME AFFAIRS REFERENCE(S):          BCC2021/62224

MEMBER:Sheridan Lee

DATE:27 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The decision under review is affirmed

Statement made on 27 May 2022 at 4:07pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made after last substantive visa ceased – genuine mistake by daughter assisting with application not factor beyond applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cl 600.223(2)(b), 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 3 December 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 3 November 2021. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.600.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. Mr Tshering Wangdi appeared before the Tribunal via telephone on 18 May 2022 to give evidence and present arguments. The Tribunal also took evidence from Mr Wangdi’s daughter, Ms Kelzang Choden who represented the applicant in relation to the review. The hearing was conducted with the assistance of an interpreter in the Dzongkha and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. On 3 November 2021, Mr Wangdi applied for a Visitor (Tourist) (Subclass 600) visa. At the time, he did not hold a substantive visa. Departmental records report that Mr Wangdi’s last substantive visa ceased on 6 October 2021.

6. Because Mr Wangdi did not hold a substantive visa on the day he applied for the current visitor visa, cl. 600.223 (2)(b) of Schedule 2 to the Regulations required him to satisfy a number of criteria, which are set out in Schedule 3 of the Regulations: 3001, 3003, 3004 and 3005. Relevantly, criteria 3004 applied. Clause 600.223 and criteria 3004 are set out in full as an annexe to this decision.

7. In summary, criteria 3004 provides for the grant of the visa if:

   ·the applicant ceased to hold a substantive visa due to factors beyond their control,

   ·there are compelling reasons for granting the visa,

   ·the applicant complied substantially with the conditions of their previous visas and entry permits, and

   ·the applicant would have satisfied the criteria for the grant of the visa on the day they last held a substantive visa.

8. The Department wrote to Mr Wangdi on 12 November 2021 regarding the factors outlined above. In response, Ms Choden acknowledged that the date to apply for her father’s new visa had been missed. She outlined that Mr Wangdi was in Australia to care for his grandchildren and noted his concern with travelling during the COVID-19 pandemic.

9. At the Tribunal hearing, Ms Choden gave evidence that she assisted her father to apply for the visitor visa. Unfortunately the date that his previous visa expired skipped her mind.

10. I accept that the delay in lodging the current visa application was a genuine mistake. Nevertheless, as discussed with Mr Wangdi and Ms Choden at the hearing, recording the correct date for the expiration of the previous visa and prioritising the application for the new visitor visa were not factors beyond their control.

11. In the circumstances, I do not accept that the applicant ceased to hold a substantive visa because of factors beyond his control. As such, he does not meet criteria 3004 for the purposes of cl.600.223(2)(b) of Schedule 2 of the Regulations.

    DECISION

12. The decision under review is affirmed.

    Sheridan Lee
    Member