Williams (Migration)

[2022] AATA 1648

Williams (Migration) [2022] AATA 1648 (6 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Morgan Leah Williams

REPRESENTATIVE:  Mr Peter Michalopoulos (MARN: 1569075)

CASE NUMBER:  2110430

HOME AFFAIRS REFERENCE(S):          BCC2021/1187019

MEMBER:Rachel Da Costa

DATE:6 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 06 May 2022 at 2:26pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – applicant’s family have permanent residence – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
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 20 July 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is 19 years old and is a citizen of the United Kingdom. She arrived in Australia on 1 February 2007 as the holder of a Temporary Work (Skilled) (subclass 457) visa. The Temporary Work (Skilled) (subclass 457) visa ceased on 1 April 2020.

3. The applicant applied for a Visitor visa on 2 June 2021. On 20 July 2021, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because the applicant did not satisfy the Schedule 3 requirements as set out in criterion 3001 of the Migration Regulations 1994 (Cth) (the Regulations).

4. On 10 August 2021, the applicant applied for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision with her application for review.

5. The applicant was invited to appear before the Tribunal on 26 May 2022 to give evidence and present arguments.

6. On 5 May 2022, the applicant’s representative provided a completed Response to Hearing Invitation form to the Tribunal and indicated that the applicant would not participate in the hearing and that the applicant consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear. On this basis, the Tribunal has proceeded to make a decision on the basis of the evidence before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly to this case, they include cl 600.223.

10. Clause 600.223 provides:

    (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.

11. The delegate found that the applicant did not satisfy the requirements of Schedule 3 criterion 3001.

12. Criterion 3001 provides:

    (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.

13. The issue in this case is whether the applicant meets the requirements of criterion 3001.

    Background and visa history

14. The applicant is a citizen of the United Kingdom. She has resided in Australia for around 14 years with her parents who are also citizens of the United Kingdom. She has two younger sisters who were born in Australia and are Australian citizens.

15. The applicant arrived in Australia on 1 February 2007 and has remained here since. She held a series of Temporary Work (Skilled) (subclass 457) visas. The most recent Temporary Work (Skilled) (subclass 457) ceased on 1 April 2020 after it had been cancelled, according to correspondence from the applicant’s representative and the delegate’s decision. Since that time, the applicant has held Bridging E (subclass 050) visas, and this is the type of visa she held at the time of her application for a Visitor visa. 

16. On 23 June 2021, the the Department wrote to the applicant requesting more information about her Visitor visa application, noting that the last substantive visa she held ceased on 1 April 2020 and that there is no provision to grant a Visitor visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. The letter explained that in the applicant’s circumstances, this means she may not meet Schedule 3, criterion 3001. The applicant was invited to comment on this information. No response was received to this letter.

17. On 20 July 2021, the Department wrote to the applicant advising her that her application for a Visitor visa had been refused on the basis that she did not satisfy clause 600.223.

    Does the applicant meet the requirements of cl 600.223?

18. Information provided by the applicant’s representative which is on the Departmental file indicates that the applicant was in Australia at the time she applied for her Visitor visa on 2 June 2021. Information in the Departmental file also indicates that her previous Temporary Work (Skilled) (subclass 457) visa ceased on 1 April 2020. Records of the Department of Home Affairs confirm this.

19. Therefore, the Tribunal finds that the applicant was in Australia at the time of application, and did not hold a substantive visa and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. On that basis, the applicant must satisfy Schedule 3 criteria 3001 to be eligible for the visa.

    Does the applicant meet criterion 3001?

20. Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day. The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.

21. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 1 April 2020 and she lodged her application for a Visitor visa (which is the subject of this application for review) on 2 June 2021. Therefore, her application was not lodged within 28 days of the relevant day.

22. On this basis, the applicant does not meet criterion 3001, which means she cannot meet the criteria in cl 600.223.

    Conclusion

23. For the reasons given above, the Tribunal is not satisfied that the visa applicant meets the requirements of cl 600.223.

    Referral for Ministerial Intervention

24. The Tribunal notes that in a letter dated 10 August 2021 to the Tribunal regarding a fee reduction request, the applicant’s representative indicated that they understood this application for review could not be successful due to the non-negotiable nature of Schedule 3001, but the application was a necessary step in order to apply for Ministerial Intervention.

25. The Tribunal notes that the applicant intends to apply for Ministerial Intervention, which she is entitled to do. The Tribunal will not refer the case to the Department for consideration by the Minister pursuant to s 351 as it does not consider it has enough information before it about the applicant’s personal circumstances to decide whether it considers referral to be appropriate.

    DECISION

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

    Rachel Da Costa
    Member