Yamnate (Migration)

[2022] AATA 2302

Yamnate (Migration) [2022] AATA 2302 (6 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chompunuch Yamnate

CASE NUMBER:  2106900

HOME AFFAIRS REFERENCE(S):          BCC2020/2751065

MEMBER:Melissa McAdam

DATE:6 July 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 July 2022 at 10:41am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – uncertainty about COVID-19 and valid bridging visa held – no discretion to waive criterion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criterion 3001(2)(c)(i), (iii)

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

2. The applicant applied for the visa on 30 November 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 she did not meet Schedule 3 criteria 3001 of regulation 600.223(2).

   Information to the Tribunal

4. The applicant appeared before the Tribunal on 6 May 2022 to give evidence and present arguments. The following is a summary of the information she provided at the hearing:

   a.The Tribunal put to the applicant that in order to satisfy criterion 3001, her application for the Visitor visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is the day she last held a substantive visa, namely 13 May 2020.

   b.The applicant responded that at the time she was planning to go back but did not know what to do and her Australian partner applied for a Bridging Visa E.  It was the beginning of Covid and they did not know what to do they thought given she held a valid Bridging Visa which had not expired then they had time to apply for another visa.

   c.The Tribunal put to the applicant that it had no discretion to waive criterion 3001.  The applicant responded that they realised when they applied for a holiday visa it was probably wrong.  She wondered if she would now be able to apply for a Partner visa.  The Tribunal suggested to the applicant she may wish to seek qualified immigration advice regarding any further visa options she may have. 

   d.In 2019 she also applied for a Visitor visa but it was cancelled as well.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

6. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.

   Does the applicant satisfy the relevant Schedule 3 criteria?

   Criterion 3001

7. 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.

8. The applicant held a substantive visa after 1 September 1994 which ceased on 13 May 2020.  Criterion 3001(2)(c)(i) therefore applies to her and the relevant day in relation to the applicant is the last day on which she held the substantive visa, namely 13 May 2020 [3001(2)(c)(iii)].

9. The applicant applied for her visa on 30 November 2020, which is more than 28 days from the date she last held a substantive visa, 13 May 2020.

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

11. For these reasons, the applicant does not satisfy criterion 3001 for the purposes of cl 600.223.

12. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed.

    DECISION

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

    Melissa McAdam
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    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.