WU (Migration)

[2022] AATA 1823

WU (Migration) [2022] AATA 1823 (30 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shengbin WU

REPRESENTATIVE:  Mr Huangfu (MARN: 1700109)

CASE NUMBER:  2111628

HOME AFFAIRS REFERENCE(S):          BCC2021/1460792

MEMBER:Rachel Da Costa

DATE:30 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 30 May 2022 at 10:13am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made more than 28 days after last substantive visa held – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 12 August 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 is a 42 year old and is a citizen of China. He arrived in Australia on 15 January 2020 as the holder of Temporary Work (Skilled) (subclass 457). That visa expired on 20 January 2021.

3. The applicant applied for a Visitor visa on 21 July 2021. On 12 August 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 1 September 2021, the applicant applied for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision with his application for review.

5. The applicant appeared before the Tribunal on 30 May 2022 to give evidence and present arguments by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review, however his representative did not attend the hearing.

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 China. In Australia, he lives with friends. In China, he has his wife and two children, his parents and a younger sister.

15. The applicant applied for a Visitor visa on 21 July 2021.

16. On 27 July 2021, the Department wrote to the applicant inviting him to comment on adverse information about his Visitor visa application, noting 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 as the applicant did not hold a substantive visa within 28 days of his visa lodgement, he may not meet Schedule 3, criterion 3001. The Department invited the applicant to comment on this information.

17. On 4 August 2021, the applicant’s representative replied to this letter and addressed the compelling reasons why the applicant should be granted the visa.

18. On 12 August 2021, the delegate found that as the application for a Visitor visa was lodged more than 28 days after the applicant last held a substantive visa, the applicant does not meet Schedule 3 criteria 3001 of regulation 600.223(2).

    Does the applicant meet the requirements of cl 600.223?

19. The applicant gave evidence that he was in Australia at the time he applied for his Visitor visa on 21 July 2021 and that his last substantive visa (Visitor visa) ceased on 20 January 2021. Records of the Department of Home Affairs confirm this.

20. 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 he 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?

21. 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.

22. The evidence before the Tribunal is that the applicant’s Temporary Work (Skilled) visa ceased on 20 January 2021 and he applied for his Visitor visa (which is the subject of this application) on 21 July 2021. Therefore, his application was not lodged within 28 days of the relevant day.

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

    Conclusion

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

    DECISION

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

    Rachel Da Costa
    Member