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Sergio

Notification of refusal Visitor (class FA) Visitor (Tourist)...seeking advice on what to do next ?

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Good Day,

My wife and I are Canadian visiting Tasmania on our small sailboat on a Visitor (subclass 600) visa obtained on the 11 Nov 2016 in New Caledonia. We flew back home to Canada for visiting our elderly parents last Sept 2017 and flew back in the 19 Oct 2017 which automatically gave us 12 more months in Australia on the same visa. Before committing to wintering in Tasmania earlier this year, we have contacted by phone (131 881) the Australian of Home Affairs to inquiry about the possibility of extending our stay another year before sailing away to our next destination around the world on the next favorable season (summer 2019). We where told without ambiguity that we had (each) to simply to apply for a new Visitor visa before the end of our current one...which we did last month. Meanwhile, we discovered that we needed to do some repairs on our boat rig (mast) and therefore, moved our boat to a marina where it is decommission for the duration of the required repairs (which should take another somethings like another 4 weeks).

Yesterdays, almost 30 days after our application, to our great dismay we where advise that both of our application were refused on the basis of Regulation 600.215 (For your consideration, I have attached both the Notification of refusal and Decision letters). My comprehension is that we have 35 days to leave (or get a new visa). Because we are visiting Tasmania aboard our small sailing vessel, it is not safe to just leave like that in the wrong sailing season. Boat are like cars, some are design for off road while others for leisure and should be driven on paved road only. Ours is sturdy but not design for all year high latitude offshore sailing.

We are genuine visitor and our intention, as stated in our application is to leave this summer in the height of the "good & safe" sailing season for NZ which is the closes next destination from Hobart.

I don't know if this is the right place to ask but we are desperate for advice. 

- Should we appeal the decision and if we do so do we have reasonable ground to do so and win it ?

- Should we seek a longer Bridging Visa to allow us to complete our repairs and wait for the favorable summer season to depart ?

- Should we book a flight to NZ within our 35 days and apply for new visa ?

An ETA seams to have the shortness processing delay but will most likely not allow us back long enough (3 mounts) to reach the height of the summer sailing season mid March.

A new 600 may take another 20 to 30 days for which we will not only need to find accommodations for that period in NZ but have us go through all the medical examination requirements.

Could we even get a new visa from overseas straight away without having to wait for a certain period ?

All of these options will incur significant unplanned expenses...some higher than others and all will seriously impact our budget (We already have spent 2x 360$ for our refused visa and are worried about what will have to spend next in order to have, what nos appears to us, as the privilege to sail away with our beloved small sail boat !).

Kind regards,

p.s.: English is our second language...please forgive odd sentences and grammatical errors.

Serge Robitaille

Master & owner of SPIRARE

 

 

 

 

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Welcome to the Australian Visa Forum,

You have unfortunately fallen foul of clause 600.215 of the Migration Regulations.

Is you current subclass 600 visitor visa still current? Or, are you on a Bridging visa currently?

Does your refusal notice state what review rights if any you have?

Also, departing Australia and then applying for another subclass 600 or ETA will not overcome your conflict with clause 600.215.

Clause 600.215

Clause 600.215 of the Migration Regulations requires that where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa. The term ‘exceptional’ is not defined in the legislation and is given its’ ordinary English meaning. The Macquarie Dictionary refers to ‘exceptional’ as ‘forming an exception or unusual instance, unusual, extraordinary’. I am not aware of any specific relevant court authority on the meaning of “exceptional circumstances” in the context of cl.600.215. However, If an applicant is seeking to apply for a visitor visa of more than 12 months, the decision maker will rely upon their policy document known as the Procedures Advice Manual. The best way to describe this, is that it provides guidance and instructions on the interpretation of the Migration Act and Regulations. The policy gives examples of exceptional circumstances for authorising a stay longer than 12 consecutive months, including:

the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support                

a change in the applicant’s circumstances (or the circumstances of an Australian resident) that:

could not have been anticipated at the time their visitor visa was granted and

is beyond the visa applicant’s control and

where not granting a visa would cause significant hardship to an Australian resident or citizen.

 


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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Hello,

Thank you for your prompt reply...answers to your questions below:

- Our subclass 600 visitor visa is valid till the 19 of Oct;

- We where given a BVA when we submitted our application for a new 600...it will automatically activate on the 19th

- The BVA end in 35 days from yesterday when our new 600 application was decline

- Yes we have the right for review but on what grounds ?

I don't quite understand the consequences of your last comment "Also, departing Australia and then applying for another subclass 600 or ETA will not overcome your conflict with clause 600.215." How long does one would have to be overseas before being granted either visa ?

Attached document: Refusal notification & Decision

 

 

Kind regards,

Serge

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8 minutes ago, Sergio said:

Hello,

Thank you for your prompt reply...answers to your questions below:

- Our subclass 600 visitor visa is valid till the 19 of Oct;

- We where given a BVA when we submitted our application for a new 600...it will automatically activate on the 19th

- The BVA end in 35 days from yesterday when our new 600 application was decline

- Yes we have the right for review but on what grounds ?

I don't quite understand the consequences of your last comment "Also, departing Australia and then applying for another subclass 600 or ETA will not overcome your conflict with clause 600.215." How long does one would have to be overseas before being granted either visa ?

Attached document: Refusal notification & Decision

 

 

Kind regards,

Serge

Thanks Serge,

Please allow me some time to look over the tourist refusal notice. I have downloaded it, but deleted the files from your post for privacy reason. More so to protect your privacy,

Cheers

Admin


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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Thank you again for looking into our case.

Omitted in my initial description of our situation is that about a week before getting our refusal, we have had to decommission our small yacht in order to proceed with unforeseen repairs to its rigging & mast discovered during normal schedules maintenance. Works is proceeding slowly and we estimate it may not be completed (or just about) at the end of our 35 days notice. Testing and tuning the rigging for seaworthiness will append after and are necessary to insure the craft safety . 

Kind regards,

Serge

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Thank you again for looking into our case.

Omitted in my initial description of our situation is that about a week before getting our refusal, we have had to decommission our small yacht in order to proceed with unforeseen repairs to its rigging & mast discovered during normal schedules maintenance. Works is proceeding slowly and we estimate it may not be completed (or just about) at the end of our 35 days notice. Testing and tuning the rigging for seaworthiness will append after and are necessary to insure the craft safety . 

Kind regards,

Serge

p.s.: Its now Thursday morning: We are driving to Hobart - Visa and citizenship office to seek advice and we have on hand a BVE (form 1008) request filled that we may submit if we are entitle to.

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The point I was trying to make with regards to clause 600.215, is that this is the specific reason your visas was refused. It is not really a question of whether you are a genuine visitor or not. Based on what you have posted, no one would argue that you are not. It is simply a matter of math. For a visa to be granted which would allow an applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa. I believe there is also Department policy that says that a person should not be able to stay in Australia for more than 12 months in a 2 year period, again exceptional circumstances need to exist. Any subsequent application must be able to address and provide evidence of exceptional circumstances. 

I note that your current tourist visa is still valid, that is, you are still on a substantive visa. This does not prevent you from making another application IMHO. Refer to the Form 1026i Limitations on Applications in Australia.

 


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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Thank you...very clear and helpful explications. Seams we are stuck. In Hobart - Visa and citizenship office this morning I have talk at length over the phone with what sounder like a immigration officer. He explained that we can't apply for any of the BV visa either while on our current visa of after the BVA becomes active (other listed in 1026 form are irrelevant to our situation) and that the 35 days notice if final. Our argument of sailing away safety implying later mid summer is non receivable because we can just hop safely in a plane and leave withing the allowed period. Consequence of living our boat behind is economic due to our own negligence of not seeking proper legal advice before committing to wintering in Tasmania. I ask about the length of time to be away before applying again and he could not say any except long and did not mentioned the 2yrs your referring to but he did acknowledge that the 600.215 will come into consideration on our next application. Again look like we a stuck unless we have solid grounds to have the rejection decision reviewed  witch I now doubt.

How sure are you about the 2 yrs ?

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2 hours ago, Sergio said:

Thank you...very clear and helpful explications. Seams we are stuck. In Hobart - Visa and citizenship office this morning I have talk at length over the phone with what sounder like a immigration officer. He explained that we can't apply for any of the BV visa either while on our current visa of after the BVA becomes active (other listed in 1026 form are irrelevant to our situation) and that the 35 days notice if final. Our argument of sailing away safety implying later mid summer is non receivable because we can just hop safely in a plane and leave withing the allowed period. Consequence of living our boat behind is economic due to our own negligence of not seeking proper legal advice before committing to wintering in Tasmania. I ask about the length of time to be away before applying again and he could not say any except long and did not mentioned the 2yrs your referring to but he did acknowledge that the 600.215 will come into consideration on our next application. Again look like we a stuck unless we have solid grounds to have the rejection decision reviewed  witch I now doubt.

How sure are you about the 2 yrs ?

I'm pretty certain the PAMS 3 (Procedural Advice Manual) that the Department uses to assist in interpreting the Migration Act and Regulations contains advice to this effect. It is policy to prevent people attempting to maintain a kind of de facto permanent residence by abusing the tourist visa program through multiple back to back tourist visa. Note that I said, policy, I am not aware of any section of the Migration Act or Regulations where this is provided, other than clause 600.215 which you are now well aware of.


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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Thank you again for you help. 

By now our options have narrowed to only one:  Leaving Australia within the prescribe period.

We now have a difficult decision to make. Leave behind for sale our economic asset (our small yacht) that we have brought negligently to Tasmania for winter or to risk a long a difficult ocean passage in the wrong season to the nearest safe heaven of New Zealand. 

Kind regards,

Serge

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Request for clarification

In my refusal letter under Review right this sentence: Review rights

"The Department cannot consider your visa application any further. However, you are entitled
to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision if
you have an approved sponsor, or your sponsor is seeking a merits review of a sponsorship
refusal decision."

I read that I need an "approve sponsor" ?

What is an "approve sponsor"

Regards,

Serge

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1 minute ago, Sergio said:

Request for clarification

In my refusal letter under Review right this sentence: Review rights

"The Department cannot consider your visa application any further. However, you are entitled
to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision if
you have an approved sponsor, or your sponsor is seeking a merits review of a sponsorship
refusal decision."

I read that I need an "approve sponsor" ?

What is an "approve sponsor"

Regards,

Serge

I note that on your refusal notice it ddi state that your decision is available to be reviewed. This would be by the Administrative Appeal Tribunal. This seems to be a little bit confusing, as generally a subclass 600 refusal requires an approved sponsor, such as a parent, spouse, family member etc. 

I would suggest calling the AAT on Monday morning and seeking clarification. The number for anywhere in Australia is 1800 228 333.

 


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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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