Acharya (Migration)

[2022] AATA 765

Acharya (Migration) [2022] AATA 765 (15 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Uma Vyas Acharya

CASE NUMBER:  2101745

HOME AFFAIRS REFERENCE(S):          BCC2020/2629626

MEMBER:Margie Bourke

DATE:15 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.223 of Schedule 2 to the Regulations.

Statement made on 15 March 2022 at 2:11pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – complying with visa conditions – application made within 28 days after the last substantive visa expired – no further stay condition waiver approved – factors beyond the applicant’s control – Department used incorrect notification address – applicant practically could not make a further visa application – compelling reasons for granting the visa – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.223, 600.233; Schedule 3 Criterion 3004; Schedule 8, Condition 8503

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 February 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 5 November 2020.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which requires if the visa applicant lodges the application in Australia, that the visa applicant satisfies the requirements of Schedule 3 criterion 3001, 3003, 3004 and 3005.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because the delegate was satisfied that the applicant met the requirements of Schedule 3004.

5. The Tribunal considered the information in the Department decision record dated 12 February 2021, the information in the Department file and the information provided to the Tribunal. The Tribunal is satisfied that based on the information available to it, it can make a decision favourable to the applicant without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

6. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The requirements of 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.

   The requirements of Schedule 3004 apply

   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; and

   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.

   Is criterion 3004 met?

7. Criterion 3004 applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa.

8. It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant.

9. In addition, the Tribunal must be satisfied that: the applicant would have satisfied the criteria, or would have been entitled to be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa; the applicant intends to comply with any conditions of the visa; and, 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 further entry permit, while the holder remained in Australia.

   Assessment of the evidence in relation to criterion 3004

10. based on the information available to the Tribunal, I am satisfied that the applicant was in Australia at the time of application and did not hold a substantive visa. Therefore the requirements of cl.600.223(2) apply to the applicant. The last substantive visa the applicant held was not a subclass 403 visa. Therefore the applicant meets the requirements of cl.600.223(2)(a). The applicant lodged the application for the visa within 28 days after the expiry of her last substantive visa. It is for this reason that the application for the visa made by the applicant engages criterion 3004. The applicant last held a substantive visa on 25 October 2020, and lodged the application for the visa on 5 November 2020.

11. The applicant held a substantive visa, namely a subclass 600 visitor visa which ceased on 25 October 2020. Therefore, the applicant meets 3004(a). The requirements of 3004(b) are an alternative to 3004(a) and therefore do not apply.

12. In the Department’s decision record dated 12 February 2021, the delegate found that the applicant did not meet 3004(c), which requires that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control. I have considered the circumstances in relation to the applicant, and I am satisfied as to the following. The applicant had a visitor visa that expired on 25 October 2020. On 10 August 2020 the applicant’s son applied for a waiver of condition 8503 which was on the applicant’s visitor visa. Condition 8503 is a no further stay condition, and the applicant could not apply for a further visa because of condition 8503. The Department acknowledged receipt of the applicant’s application for the waiver of condition 8503. The Department provided an email outlining there was a vast number of applications for waiver of condition 8503, and applications would be prioritised in accordance with the visa expiry date. The Department stated in the email the progress enquiries would not be responded to unless they were within two working days of the visa expiry date. The applicant’s son stated he had misunderstood and interpreted the email from the Department as advice that the waiver application would not be processed until two working days from the visa expiry date.

13. The Department approved the application for waiver of condition 8503 on the applicant’s visitor visa. The Department sent an email address to the applicant’s son dated 25 September 2020, but sent it to the applicant’s email address. The applicant’s son who had submitted the application did not receive the approval email because it was not sent to him. The applicant, who is described as not being “tech savvy” did not receive or did not read her email from the Department approving the application. The applicant’s son contacted the Department within two days of the applicant’s visa expiry date in relation to the application to waive condition 8503. By email dated 26 October 2020, the Department advised the applicant’s son that the application to waive condition 8503 had been approved on 25 September 2020, and that the applicant’s visa had expired on 25 October 2020 and she was now unlawfully in Australia. I accept based on the document provided, that the approval of the waiver of condition 8503 was not addressed to the applicant but was addressed to the applicant’s son who had submitted the waiver application. I accept based on the document provided that the approval of the waiver of condition 8503 dated 25 September 2020 was not sent to the applicant’s son email address, but to another email address, that of the applicant. I am satisfied that the applicant’s son did not receive the notification of the approval of the waiver of condition 8503. I am satisfied based on the evidence presented to the Tribunal that the applicant was unable to read the email addressed to her son but sent to her email address by the Department approving the waiver of condition 8503 dated 25 September 2020.

14. I am therefore satisfied that the applicant, through her son, had applied for the waiver of 8503, but the person who made that application was not notified of the approval of the waiver of condition 8503. I am satisfied that the applicant could not make an application for another visa until the application for the waiver had been processed. I am satisfied that an error was made by the Department in not notifying the person who had made the application for the waiver, as the approval notification was not sent to his email address. I am satisfied that in a practical or realistic sense the applicant could not have done anything further to apply for a visitor visa whilst the holder of a substantive visa. I am satisfied that the applicant could not have done anything further to prevent the circumstances that arose, which meant her substantive visa expired before she lodged the application for the visa which is the subject of this review The applicant had made arrangements for her son to apply on her behalf for the no further stay condition to be removed, and the applicant and her son were waiting for her son to be notified that approval had been granted to waive condition 8503 before applying for a further visa.

15. After the applicant and her son became aware that she was no longer the holder of a substantive visa and that the condition 8503 had been waived, the applicant applied for a bridging visa, and then the visitor visa which is the subject of this review. I am satisfied that the applicant was not the holder of a substantive visa at the time of application for the visa which is the subject of this review because of factors beyond the applicant’s control. I am therefore satisfied that the applicant meets 3004(c).

16. I am satisfied that the applicant is an older woman, being born in 1956, from India and her husband is deceased. I am satisfied she has no immediate relatives who reside in India and her three children are citizens of either Australia or the USA. I am satisfied that the applicant felt vulnerable to the pandemic and wished to remain with her son and daughter in Australia at the time of the pandemic. I accept that these are compelling reasons for the grant of the visa and the applicant meets 3004(d).

17. Based on the evidence before the Tribunal, I am satisfied that the applicant has complied substantially with the conditions that applied to her last visitor visa (excluding the condition with which the applicant was in breach because the visa had expired at the time of application for the visa which is the subject of this review), and I am satisfied that the applicant has complied substantially with the conditions that applied to the subsequent bridging visa that she was granted. I therefore find the applicant has met the requirements of 3004(e)(ii), and therefore the applicant meets 3004(e).

18. I have considered that the waiver team approved the applicant’s application for waiving condition 8503. There is no evidence before the Tribunal to indicate that the applicant would not have been entitled to the grant of a visitor visa, if the applicant had applied for the visitor visa whilst the holder of a substantive visa at the time of application. Therefore, the applicant meets 3004(f).

19. Based on the information available to the Tribunal, I am satisfied that the applicant intends to comply with the conditions to which the visa would be subject. Therefore, the applicant meets 3004(g).

20. The last visa held by the applicant was not a transitional (temporary) visa, and therefore the requirements of 3004(h) do not apply.

21. For all the above reasons the Tribunal is satisfied that the applicant meets the requirements of criterion 3004.

22. The Tribunal is satisfied that the applicant meets the requirements of criterion 3001 and 3004, and the requirements of 3003 and 3005 do not apply. Therefore, the applicant satisfies the requirements of cl.600.233(2)(b).

23. As a Tribunal is satisfied the applicant meets the requirements of cl.600.233, the appropriate course is to remit the matter back to the Department for consideration of the remaining criteria.

    DECISION

24. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.223 of Schedule 2 to the Regulations.

    Margie Bourke
    Member