Yi (Migration)

[2022] AATA 2674

Yi (Migration) [2022] AATA 2674 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Li Yi

CASE NUMBER:  2108776

HOME AFFAIRS REFERENCE:              BCC2021/423901

MEMBER:Rosa Gagliardi

DATE:15 June 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

Statement made on 15 June 2022 at 9:45am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa – Schedule 3 criteria – application lodged outside of relevant timeframe – no discretion – 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 30 June 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 16 March 2021. The delegate refused to grant the visa on the basis that he/she found that the application for a Visitor (Class FA) Subclass 600 visa (Tourist Stream) was lodged more than 28 days after the applicant last held a substantive visa and therefore found the applicant does not meet Schedule 3 criteria 3001 of regulation 600.223(2). For that reason, the delegate found that the applicant does not meet the relevant criteria in clause 600.223 in Schedule 2 of the Migration Regulations.

3. 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.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 because at the time she applied for the visa, she did not hold a relevant substantive visa and did not satisfy 3001 in Schedule 3, as she did not apply for the visa within 28 days of expiry of the previous visa.

5. The applicant appeared before the Tribunal on 27 May 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for Criterion 3001 of Schedule 3, and ultimately meets cl.600.223. 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) and includes the last day when the applicant held a substantive visa. Specifically, cl. 600.223 requires:

   cl.600.223

   (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.

8. Criterion 3001 of Schedule 3 states:
   
           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.

9. The applicant lodged an application for a Visitor (Tourist) (subclass 600) visa on 16 March  2021.  Her previous substantive visa – a

   Student Guardian (subclass 590) visa - ceased on

   
   

   31 December 2020.  It is therefore not in contention that at the time the applicant applied for the visa under review, there was more than 28 days since she last held a substantive visa.

10. The applicant provided the Department with a written statement dated 16 March 2021, setting out her circumstances and why she withdrew her subclass 590 visa (Student Guardian visa) application.  Essentially, the applicant had initially been a Guardian for her child who was studying in Australia.

    
    
    

    My previous student guardian visa was ceased on 31th Dec 2020. Due to our family situation explained in the letter, I decided to apply for a new student guardian visa 590.
    I started to prepare the new application in early December. But unfortunately, there were several issues that delayed my new visa 590 application:
    
    
    1: My passport was going to expire soon. I didn’t pay much attention to my passport expiring date. That is my fault. I applied for the new passport and courier to Singapore Embassy, skype interviewed with the embassy, and arranged a courier collection before the Christmas holiday started.
    
    
    2: Due to Covid-19, the release date of VCE result was postponed, I kept waiting for the COE from the University before my Visa expired, but couldn't get any. That explained why I didn’t lodge the application at an earlier time.  Therefore, I submitted my Visa 590 application on 28th Dec 2020, right before my previous Visa 590 ceased. I was granted a bridging visa...I was waiting for the outcome of my Visa 590 application then.  On 8th Mar 2021, I was notified by an officer via telephone call and followed by an email, asking me to withdraw my Visa 590 application as it is invalid. He suggested that I can submit a Visa 600 application instead. All these need to be done within 7 days.  I withdrew my Visa 590 application and lodged a Visa 600 via immi account on 11th Mar 2021. But I was immediately notified that the Visa 600 application was invalid because it did not meet item 1236(3).

    As I was in Australia and not the holder of any substantive visa, I needed to apply using paper form 1419 and posting the application to immigration department.  Therefore, I submitted my Visa 600 application using paper form via courier, it was received on 16th Mar 2021, and I was granted a bridging visa…

    When I look back at the timeline now, I think the unlawful stay might refer to the period from 11^th Mar when I withdrew my Visa 590 application until 16th Mar when immigration received my paper Visa 600 application. The old bridging visa was withdrawn but the new bridging visa was not granted yet.

    I should withdraw Visa 590 and lodge Visa 600 at the same time both using the paper form.

    Now the Covid situation of Singapore & Malaysia are getting worse, I still can’t go back to Malaysia where my home is.

    I would be much appreciated if you could consider my situation and grant a longer stay visa.

11. At hearing the applicant stated that she thought she had been misled by the Departmental official to withdrew her Student Guardian visa and to apply for a Visitor visa.  The Tribunal does not have evidence before it to indicate that anyone in the Department maliciously told the applicant to withdraw her Student Guardian visa.  Indeed, there is a letter to the applicant from the Department dated 8 March 2021, providing the applicant with information about the Student Guardian visa (subclass 590).  There is a notation to advise that the applicant should also let the Department know if she wanted to withdraw her application, but only at the very end of the letter.  If the applicant’s Student Guardian visa was invalid it may be that the Departmental officer was simply attempting to assist the applicant regularise her status by applying for a Visitor visa initially.  However, the Tribunal is unable to speculate on what may or may not have transpired between the Department and the applicant.

12. The applicant at hearing stated that she now wanted to be able to apply as a dependent on her spouse’s visa.  Her husband’s studies would be completed in December 2024.

13. As the Tribunal put to the applicant very clearly at hearing, the Tribunal does not have discretion to waive the requirements of PIC 3001.  The Tribunal is required to read the regulations as they are and is unable to take into account any mitigating circumstances.  The applicant held a substantive visa at the time of lodging the application for the visa under review, or she did not. 

14. In this case the applicant did not hold a substantive visa at the time of application and the Tribunal cannot take into account any considerations as to the circumstances that led to the situation.  Only the Minister may intervene if it is considered that the applicant’s case meets the relevant guidelines.  The Tribunal understands that the applicant will exercise her capacity to refer her matter to the Minister.

15. As the applicant does not meet the requirements in Criterion 3001, the Tribunal must affirm the decision under review.

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) Subclass 600 visa.

Rosa Gagliardi
Member