Alharbi (Migration)

[2022] AATA 1298

Alharbi (Migration) [2022] AATA 1298 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muslim Ayyad E Alharbi

REPRESENTATIVE:  Mr Mohamed Al-Fadhli (MARN: 1799282)

CASE NUMBER:  2109456

HOME AFFAIRS REFERENCE(S):          BCC2021/3232

MEMBER:Joseph Lindsay

DATE:4 May 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 4 May 2022 at 4:10pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – applicant not holder of substantive visa at time of making application – factors outside applicants’ control and compelling reasons for grant of visa – misunderstanding of expiry date of previous visa – COVID-19 travel restrictions – application made as soon as applicants became aware that previous visa expired – ongoing medical treatment and incapacity for travel – adult child’s high-level studies – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3004

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 13 July 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 3 March 2021. The applicant attended the Tribunal by audio on 21 April 2022 to give evidence and present arguments. The applicant was represented and was assisted by an interpreter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in the present case is whether the applicant meets the requirements of cl.600.223 of the Regulations. Cl.600.223 provides that;

   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:  (Tribunal emphasis)

   (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. (Tribunal emphasis)

4. The Tribunal notes that the applicant’s representative provided written submissions to the Tribunal that detailed the decision from the Department dated 13 July 2021, and the indicated that that information in those submissions was correct. The applicant made admissions that he lodged an application for an FA600 Visitor- Tourist Stream visa on 2 March 2021 and that he last held a substantive Tourist Stream (FA 600) visa on 22 February 2021.

5. The applicant’s representative provided the following background:

   Mr Muslim Alharbi and his wife Mrs Hayat Alharbi arrived in Australia in July 2018 with their daughter Ms Abrar Alharbi who has recently completed a Master of Advanced Nursing practice at the Queensland University of Technology. Ms Abrar Alharbi is in the process of enrolling in a PhD course. Ms Abrar Alharbi anticipates completing her studies in 2024. Ms Abrar Alharbi was the holder of a student visa (subclass 500) that was valid until 30 of July 2021. She has since applied for a Visitor (Tourist) visa while waiting for the new COE to be issued. Both her parents held visitor visas (subclass 600).

   The review applicant, his wife and their daughter last entered Australia on 22 February 2020. Shortly after entering Australia, travel restrictions were introduced due to COVID-19 and the family was unable to depart Australia accordingly. Even if the family was able to depart Australia, it would have been almost impossible for them to return with their daughter to Australia to continue her studies due to COVID-19 inward travel restrictions.

   Before addressing the review applicant’s compelling reasons, I would like to draw the Tribunal Member’s attention to the following points:

   • The review applicant has no history of non-compliance

   • The review applicant was unlawful for 8 days only before lodging the visitor visa application

   • The reason why the review applicant became unlawful, as explained above

   • The review applicant sought to regularise their status as soon as they became aware of it

   • The review applicant lodged a visitor visa application to replace the one that has expired and engaged the services of a Registered Migration Agent to handle the application after receiving a request for further information from the DHA.

6. The representative submitted that the applicant does not read or write English, and that when told by his daughter that the visa would expire on 28 January 2022, the applicant did not seek further checks or clarifications. The representative submitted that the applicant sought to regularise his status immediately after being informed that his visa ceased on 22 February 2021. The representative submitted that the applicant relied on his daughter to read and explain their visa documents to them and that Ms Abrar Alharbi misconstrued the “must not arrive after” date as the “visa expiry” date – a situation that led the family to believe the subclass 600 visa, which both parents held, would expire on 28 January 2022.

7. The representative also submitted that the applicant had been admitted to hospital on 22 December 2020 where he underwent several surgeries. The representative submitted that the applicant continued to see his specialist after the surgeries and was not capable of travelling. The representative submitted that the applicant was in need of constant care which was provided by his wife and his daughter.

8. The representative also submitted that the applicant’s daughter, Ms Abrar Alharbi, is in the process of enrolling in a PhD course which will last for three years. The representative submitted that if the applicant was required to depart Australia, his daughter, Ms Abrar Alharbi would be negatively affected by this.

9. In consideration of the information provided to the Tribunal, the Tribunal makes the following findings. The Tribunal accepts that the applicant has poor English skills and relied on his daughter for assistance. The Tribunal accepts that his daughter made a genuine mistake in respect to the correct expiry date of the visa. The Tribunal accepts that the applicant has undertaken medical treatment and that he was not capable of travelling at the time. The Tribunal accepts that the applicant has a desire to support his daughter for a period of time in respect to her studies.

10. Given the above findings, the Tribunal is satisfied that there were factors outside the applicant’s control preventing them from lodging an application whilst holding a substantive visa and the Tribunal is satisfied that there are compelling reasons for the grant of the visa. The Tribunal is satisfied that the applicant has complied with Criterion 3004.

11. Accordingly, the Tribunal finds that the applicant satisfies cl.600.223 and is therefore eligible for the grant of the Class FA Subclass 600 Visitor visa.

    DECISION

12. 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.

    Joseph Lindsay
    Member