Antal (Migration)

[2022] AATA 3321

Antal (Migration) [2022] AATA 3321 (1 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Asees Kaur Antal

REPRESENTATIVE:  Mr Tanveer Singh (MARN: 1173217)

CASE NUMBER:  2108862

HOME AFFAIRS REFERENCE(S):          BCC2021/254371

MEMBER:Naomi Schmitz

DATE:1 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2022 at 4:19pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant was not the holder of a substantive visa at the time of application – applicant is a minor – geographical distance or the COVID-19 lockdown was not a factor beyond the applicant’s mother’s control –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3004

CASES
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151

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 18 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 February 2021.

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 not satisfied that the applicant met the requirements of Schedule 3004. Relevantly in this case, the delegate was not satisfied that the visa applicant satisfied criteria 3004(c), that the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control.

5. On 9 July 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

6. On 16 May 2022 the applicant was invited to appear before the Tribunal on 8 June 2022 at 10:30am via telephone in the Multiple Applicant Phone List. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. On 30 May 2021 the representative filed submissions in support of the review which the Tribunal has considered. The Tribunal also received further submissions on 21 June 2021 which the Tribunal has had regard to.

8. As the applicant is a child aged three years and nine months, the applicant’s mother gave evidence on the applicant’s behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review. The representative attended the hearing.

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

   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?

10. 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.

11. 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.

12. 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

13. Based on the information available to the Tribunal, the Tribunal is 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 and therefore satisfies criterion 3001. Criteria 3003 does not apply. It is for this reason that the application for the visa made by the applicant engages criterion 3004.

14. Information before the Tribunal shows the applicant travelled to Australia in early 2020 with her grandparents after being granted a Visitor Subclass 600 visa. At hearing, the applicant’s mother gave evidence that prior to this time, the applicant had been separated from her and her husband, as a result of them studying in Australia on Student visas. Whilst abroad in Australia, the applicant has been residing in India and cared for by family. The applicant’s mother stated she made a mistake with the applicant’s visa and was unaware that she could have included her daughter as a dependent applicant on her Student visa and had her daughter co-habiting with her and her husband during their studies.[1]

    [1] Departmental file BCC2021254371

15. The applicant’s mother gave evidence that the applicant last held a substantive visa, namely a Visitor (Subclass 600) visa which ceased on 13 February 2021. The applicant’s mother confirmed she lodged the visa application which is the subject of this review on 16 February 2021. Therefore, the applicant meets 3004(a). The requirements of 3004(b) are an alternative to 3004(a) and therefore do not apply.

16. In the delegate’s decision record dated 23 August 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.

17. Given the applicant is a minor, the applicant’s mother was responsible for organising the applicant’s visa, the Tribunal Member asked the applicant’s mother if she had ever used a representative such as a lawyer or migration agent to assist with her child’s migration matters. The applicant’s mother confirmed she had used a migration agent for her daughter’s two pervious Visitor visas and the refused visa which is the subject of this review. The Tribunal Member noted that the representative’s submissions were vague and did not identify the representative. The Tribunal Member therefore asked which representative the applicant’s mother used for the refused visa. The applicant’s mother confirmed Mr Tanveer Singh, the representative who appeared at hearing.

18. The Tribunal Member asked the applicant’s mother how she managed the applicant’s migration matters and whether she had an IMMI, Visa Entitlement Verification Online (VEVO) account or registered email account with the immigration department. The applicant’s mother confirmed she received visa grant letters via email. The applicant’s mother confirmed the visa applicant was originally granted a Visitor visa (Subclass 600) on 6 June 2019 which was valid to 14 May 2020. She then applied onshore for a second Visitor visa that was granted on 7 August 2020 and valid until 13 February 2021.

19. The Tribunal Member asked the applicant’s mother where she was living at the time of the applicant’s visa application. She confirmed in Truganina. The Tribunal Member put to the representative that documents filed with the Tribunal disclosed that at the time of the visa application, the representative was operating from a business premises at 14/84 Mount Derrimut Road Deer Park.[2] The representative confirmed this was correct. The Tribunal Member noted the applicant’s mother was residing a mere 11.5 km or 15 minutes by car from her representative’s premises.[3] This was not disputed.

    [2] Ibid Departmental file; Tribunal file and submissions lodged by representative

    [3]

20. The Tribunal Member asked the applicant’s mother how not holding a substantive visa at the time of application for the visa was because of factors beyond her control. The applicant’s mother stated ‘I didn’t know how any knowledge as to how I could apply for a visa’ She referred to restrictions on travel movement due to the COVID-19 lockdown and stated she ‘could only speak over the phone’.

21. The Tribunal Member told the applicant’s mother that the Tribunal Member had read the submissions in support of the application for review and asked what date the applicant’s mother had scheduled an appointment with Mr Singh to organise her daughter’s third Visitor visa. The applicant’s mother stated either 13 February 2021 or 14 February 2021. The Tribunal notes that this is a Saturday and Sunday and on the day the applicant’s visa was last valid or the day after the applicant’s substantive visa expired.

22. The Tribunal Member noted that Victoria went into a third COVID-19 Lockdown on Friday, 12 February 2021. The Tribunal Member put to the applicant’s mother that Victoria was open from 28 October 2020 until Thursday 11, February 2021 and asked what prevented her from lodging an application during this time whilst her daughter was still the holder of a substantive visa. The applicant’s mother stated that it was a ‘miscalculation of the dates’, that she ‘wasn’t sure of the dates’ and ‘I should have kept those dates in mind’.

23. The Tribunal Member asked the applicant’s mother even taking into account the COVID-19 restrictions, why she did not conduct a conference with her representative by phone (the same mode of the merits review hearing) or virtually such as via Microsoft Team, Zoom or Facetime. The Tribunal Member put the question three times to the applicant’s mother who refused to answer the question on all three occasions.

24. The applicant’s mother confirmed that prior to the expiry of the applicant’s visa, no plans had been made for the visa applicant to depart Australia such as booking an air flight back to India. The applicant’s mother also confirmed that she did not try to contact the Department of Home Affairs prior to the expiry of the applicant’s visa. She confirmed she contacted the department and obtained a bridging visa on 18 February 2021.

25. At the conclusion of the hearing the representative submitted that the applicant’s mother was ‘not very much informed about the visa process’ and relied on the services of a migration agent. As outlined above, the representative at hearing was revealed as the representative responsible for the visa application. The representative claimed the visa applicant was living in regional Victoria at the time of application and unable to travel to her scheduled appointment. The Tribunal Member noted and put to the representative that Truganina is only 22.4km from the Melbourne CBD and part of Wyndham Local Government and thus part of Metropolitan Melbourne and not regional Victoria as asserted. The representative then claimed the mother was living in country Victoria.[4] The Tribunal Member stated there was no corroborative evidence to support the representative’s oral submission and that it directly contradicted the viva voce evidence by the applicant’s mother under oath at the hearing that she was residing at Truganina. The Tribunal Member also noted that this contradicted the personal particulars provided in the applicant’s visa application. The applicant’s mother did not wish to give any further evidence. The representative submitted that the best interests of the child shall be a primary consideration.

    [4]

26. In considering whether there were factors beyond the applicant's control, the Tribunal has had regard to the decision in Su v MIAC [2007] FMCA 318; Liu v MIAC [2010] FMCA 60; and Montero v MIBP [2014] FCCA 946.

27. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 involved Schedule 3 criterion 3004 in the context of a Subclass 457 visa. While the application in that case was dismissed by the Court, the judgment provides guidance on the interpretation of the test of factors beyond the control of a person. Smith FM, referring to the judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17] that two useful points emerge from that case:

    The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense "subjective", rather than being directed at deciding what would have been beyond the control of an abstract or "reasonable" person. A second point, is that what is "beyond control" should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.

28. In the case of Su[5], the court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that It was difficult to regard as ‘beyond control’ an event caused by forgetfulness or misunderstanding on the part of the person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.

    [5] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

29. In Montero v MIBP [2014] FCCA 946 the applicant claimed that he met cl.3004(c) as he had submitted documents to his employer who prepared the application, repeatedly advised them of his visa expiry date, and that this was a type of visa application which required his employer’s assistance to lodge. The Tribunal did not accept it was beyond the applicant’s control to lodge the application within time himself and found that his decision to let the employer lodge the application was a choice made within his control, referring to Su v MIAC [2007] FMCA 318. The court found that the Tribunal made a jurisdictional error by misconstruing or misapplying cl.3004(c). Although the Tribunal referred to the exposition of the expression ‘beyond the control of a person’ in Su, it did not apply it. According to the court in Montero, the Tribunal failed to consider the fact that the applicant could not have applied for the visa without the cooperation of his employer; and that the applicant could not direct his employer to do what it had to do to enable him to apply before his Subclass 572 visa expired. In that regard cl.857.213(a) required that he must have been nominated by an employer for an appointment in the business of that employer.

30. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. In upholding the Tribunal’s decision, the court reiterated that the test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

31. The Tribunal has considered all the evidence, nonetheless, it is the applicant’s, or in this case given the applicant is a minor, the applicant’s mother’s responsibility to be aware of the expiration date of the applicant’s visa and to make arrangements to depart Australia during that visa or, if that is not possible, to lodge a further visa whilst holding a substantive visa to regularise her migration status in Australia.

32. The Tribunal accepts the applicant’s mother’s evidence that she was residing in Truganina at the time of application. This is supported by the applicant’s visa application and the  applicant’s mother’s viva voce evidence at hearing. The Tribunal rejects the representative’s oral submission that she was residing somewhere in regional Victoria, as it is not supported by any corroborative or contemporaneous evidence or the applicant’s mother’s evidence at hearing. Further, the Tribunal does not regard the suburb of Truganina as being in regional Victoria, rather it is considered as Metropolitan Melbourne. The Tribunal further notes that Truganina is located merely 11.5 kilometres from the representative’s office. 

1. In any event, even if the applicant’s mother was in regional Victoria, the Tribunal does not accept that geographical distance or the COVID-19 lockdown was a factor beyond the applicant’s mother’s control which frustrated her ability to lodge the Visitor visa application whilst the applicant was still the holder of a substantive visa. There is no evidence to support that the applicant’s mother could not have virtually conducted a conference with her representative such as by Microsoft Teams, Zoom or Facetime or by phone (the same mode as the merits review hearing). The Tribunal further notes at hearing that the applicant’s mother did not provide responses as to why she did not exercise those options (virtual or phone appointments) and was evasive and refused to answer the question despite being given multiple opportunities. The Tribunal makes an adverse finding as the applicant’s mother’s credibility. In addition, there is no evidence to support that the applicant’s mother did not have access to a phone or computer, and her conduct in applying and obtaining a bridging visa soon after the expiry of her daughter’s substantive visa indicates otherwise.

2. The Tribunal has had regard to the applicant’s mother’s evidence that she miscalculated the dates and did not have much knowledge of the visa application process. Knowledge of the expiration date of the applicant’s previous visitor visa was information within the applicant’s control. In Liu the court found that lack of English and the complexity of the visa system did not amount to factors beyond the applicant’s control. Similarly, in this case the applicant’s mother could have taken steps to apply for the visa in time, this was particularly given she had an email account which she used to receive visa grant notices and monitor the status of her daughter’s visas. The Tribunal further notes that the applicant has been granted two previous visitor visas and the applicant’s mother has previously used a migration agent for those visas and the refused visa, and could have taken the same care as indicated by her prior conduct. The Tribunal further notes the applicant’s mother was unsure whether her appointment with her representative was on 13 February 2021 (the last day the substantive visa was valid) or 14 February 2021 (the day after the visa expired). This raises doubts as to the reliability of the applicant’s mother’s evidence. In any event, even if the appointment was on 13 February 2021, there is no evidence to indicate as outlined in paragraph [33] above why the appointment (virtual or by phone) was unable to proceed. Overall, the Tribunal is not satisfied that the applicant’s mother’s alleged miscalculation and lack of understanding constitutes a factor beyond her control. The Tribunal considers that in her own particular circumstances she could have done something to apply for the visa before the expiry of her daughter’s last substantive visa and in a practical or realistic sense, the factors were not beyond her control.[6]

   [6] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318; Liu v MIAC [2010] FMCA 60

3. While the Tribunal has considerable sympathy for the applicant’s circumstances and accepts the applicant did not intentionally overstay her visa, the Tribunal is satisfied that the circumstances were not beyond the applicant’s control

4. , or in this case her mother’s control. The Tribunal is therefore not satisfied that the applicant meets 3004(c).

5. The applicant is a child aged almost four years of age from India. The applicant sought a longer stay in Australia to spend time with her parents who are both studying in Australia and due to the COVID-19 pandemic and poor conditions in India. The Tribunal is therefore satisfied that these are compelling reasons for the grant of the visa and that the applicant meets 3004(d).

6. The Tribunal has also considered the best interest of the child principles and the representative’s submission that the applicant cannot have a meaningful relationship with her parents if she returns to India and the detrimental impact on her growth and development, however, does not accept that in these circumstances that it constitutes a compelling reason for the grant of the visa. This argument is undermined by the applicant’s parent’s conduct in choosing to leave behind their child (the applicant) in India and study abroad in Australia. Overall, the Tribunal does not accept this submission as it is contradicted by the applicant’s parents behaviour and it appears the applicant is attempting to circumvent the visa process.

7. Based on the evidence before the Tribunal, the Tribunal is 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 the Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to the subsequent bridging visa that she was granted. The Tribunal therefore finds the applicant has met the requirements of 3004(e)(ii), and therefore the applicant meets 3004(e).

8. 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).

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

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

11. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl 600.223. 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

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

    Naomi Schmitz
    Member