Zemura (Migration)

[2022] AATA 2715

Zemura (Migration) [2022] AATA 2715 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hildah Zemura

CASE NUMBER:  2113508

HOME AFFAIRS REFERENCE(S):          BCC2021/1732582

MEMBER:Catherine Carney-Orsborn

DATE:29 June 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 29 June 2022 at 4:05pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) –application was made more than 28 days after the last substantive visa held by the applicant ceased –applicant did not apply for the visa whilst the holder of a substantive visa –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 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 28 September 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 visa applicant applied for the visa on 2 September 2021. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams.

3. 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 apply for the visa whilst the holder of a substantive visa.     

4. The applicant appeared before the Tribunal on 29 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

7. 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

8. 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.

9. The Tribunal has the information on the Department file and information provided by the applicant.

10. The Tribunal took oral evidence from the applicant.  The Tribunal explained that it was reviewing the decision made by the Department on 28 September 2021.  The applicant indicated she wanted to stay in Australia with her son.  She indicated she was hoping to get a permanent visa.  The Tribunal explained that it could not grant her a permanent visa and was reviewing the decision made by the Department not to grant her a further visitor visa.

11. The information before the Tribunal indicates that the applicant last held a visitor visa on 10 February 2021.  

12. The applicant was granted a Bridging visa on 1 June 2021.  The Bridging visa is not a substantive visa.

13. The applicant applied for the subclass 600 visa on 2 September 2021 while holding a bridging visa.

14. The applicant at hearing conceded that the application was not made within 28 days of the ceasing of the substantive visa. 

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

    Conclusion on Schedule 3 criteria

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

17. 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

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

    Catherine Carney-Orsborn
    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.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    ·            3005     

    ·            A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    ·(a)         this Schedule; or

    ·(b) Schedule 6 of the Migration (1993) Regulations; or

    ·(c)         regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.