Baber (Migration)

[2022] AATA 1645

Baber (Migration) [2022] AATA 1645 (9 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fahi Tahereh BABER

REPRESENTATIVE:  Mr Stanley CHAN

CASE NUMBER:  2106552

HOME AFFAIRS REFERENCE(S):          BCC2021/27146

MEMBER:Nathan Goetz

DATE:9 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa

Statement made on 09 May 2022 at 1:46pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – factors beyond the applicant’s control – COVID19 travel restrictions – compelling reasons for granting the visa – people stranded in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, 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 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 applicant was represented in the review application by registered migration agent 0430097.

   BACKGROUND

3. The applicant identifies as 74-year-old female citizen of Canada who is presently located in Australia.

4. She last arrived in Australia on 5 February 2020 holding a visitor visa that ceased on 5 February 2021.

5. On 19 February 2021 the applicant applied for the visitor visa that is the subject of this review application. On 10 May 2021 the delegate refused to grant the visitor visa on the basis that the applicant did not satisfy Public Interest Criteria (‘PIC’) 3004(c) of Schedule 3 of the Migration Regulations 1994 (‘the Regulations’) namely, that there were no factors beyond the applicant’s control which prevented the applicant from lodging the visitor visa while holding the existing visitor visa. As the applicant did not satisfy PIC 3004(c), she failed to satisfy PIC 3004 in its entirety and as a result she failed to satisfy cl 600.223 of Schedule 2 of the Regulations.

6. On 17 May 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the visitor visa.

7. On 19 April 2022 the Tribunal wrote to the applicant for two reasons.

8. The first reason was to invite the applicant under s 360 of the Act to appear at a Tribunal hearing commencing at 12noon on 9 May 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal was unable to make a decision favourable to the applicant on the material it had. The applicant was asked to complete and return a ‘Response to hearing invitation form’ within 7 days.

9. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The information requested was information about whether the applicant lodged her previous visitor visa application by electronic means or in hardcopy form. This letter advised the applicant of the consequence of failing to provide the Tribunal with this information by 4 May 2022, namely that the Tribunal hearing would be cancelled, and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at a Tribunal hearing.  

10. On 4 May 2022 the applicant responded to the information request and advised that the visitor visa she held when she arrived in Australia was applied for electronically.

11. On 9 May 2022 the applicant appeared at the Tribunal hearing by telephone. The Tribunal was satisfied that a telephone hearing was appropriate in the circumstances.

12. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Farsi interpreter.

    CRITERIA FOR THE VISITOR VISA

    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.

    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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant submitted a hardcopy visitor visa application form signed on 16 February 2021. She wished to stay in Australia until 5 February 2022 and wrote that she was ‘sorry for her carelessness which caused her valid visa to expire on 5 February 2021.’ She wrote that she ‘decided to extend her stay in Australia due to the outbreak of coronavirus in the world and that airlines had cut flights.’ It was ‘very difficult to purchase the ticket within the limited timeframe.’ She accepted that she did not hold a current visa, although noted that she held a current bridging visa. The Tribunal understands her acceptance that she did not hold a current visa to mean a current ‘substantive visa,’ (being the visitor visa).

14. The form also asked whether the applicant had been in Australia and not complied with visa conditions or departed Australia in accordance with her authorised period of stay. She indicated that she was such a person. She detailed that her previous visa expired on 5 February 2021 and was ‘careless’ not applying for a new visa to extend her time in Australia within the required timeframes.

15. Attached to the visa application form were several documents, such as bank statements, which do not need to be detailed in the review application because they are not relevant to the facts being considered by the Tribunal.

16. On 15 March 2021 the delegate wrote to the applicant and requested more information. The delegate provided a copy of cl 600.223 and noted that to satisfy criteria 3003 and 3004, the applicant needed to demonstrate that there were factors beyond her control which prevented her from lodging an application whilst holding a substantive visa and there are compelling reasons for granting the visa.

17. On 22 March 2022 the applicant responded to that request. The response was a letter from a person named Razmik Bandarian. The letter claimed that Farideh Zamani is the applicant’s sister and invited the applicant to come to Australia. A return ticket for a flight to Canada on 18 January 2021 with Air Canada was booked for the applicant but ‘according to Australian and Canadian news’ there were no flights available during the pandemic. The applicant asked the author to telephone Canadian airlines and enquire about a return ticket.

18. The author wrote that he called the ‘Canadian Airlines Office’ in Australia on 1 December 2020 and spoke about the scheduled travel for 18 January 2021. The author was advised that the applicant needed to postpone her return date because of flight unavailability. It was submitted that it was safer for the applicant to her own safety first and not return to Canada due to corona virus cases being very active there. A travel agent was contacted in Canada and the flight was delayed for one year. The letter noted the presence of the applicant’s family in Australia and that her family were concerned about the applicant retuning to Canada during the pandemic. The family all suggested the applicant stay in Australia for another year until the pandemic was under control.

19. The author wrote that he was not sure when the applicant’s visa would expire and did not know how to go about extending the visitor visa. The applicant told the author on ‘many occasions’ to follow up the request to extend the visa and the author promised he would do so. However, the author noted that he was very confused by the fact that both the Australian and Canadian governments kept announcing that there were no flights until further notice and many people were stranded.

20. The author detailed that on 12 February 2021 he received notice from the Department that the applicant’s visa expired on 5 February 2021. The applicant was very upset and held the author responsible for his inaction. The author then contacted a migration agent and spoke to the agent on 16 February 2021 and asked the agent to assist in applying for a visitor visa to allow the applicant to remain in Australia for another year. The author explained the reason to the agent for his inaction.

21. On 4 May 2022 the applicant provided the Tribunal with a statutory declaration made by herself, and a statutory declaration made by Mr Razmik Badarian.

22. In her statutory declaration, the applicant wrote that two months before her visa ceased, she started to be concerned about her return details because of the ban on travel. The situation had an adverse effect on her health, she began to panic and feel very sick. She spoke about contacting Air Canada in December 2020 to verify her flight details and was advised that her ticket had been extended due to no flight being available. She wrote that her family members invited her to stay longer in Australia. She claimed that she planned to call the Department on many occasions to apply for an extension of her visitor but was ‘living in fear not knowing what would happen to me and my family.’ Her friend Mr Badarian offered to sponsor the applicant to stay in Australia, but it was claimed that he ‘also suffered from mental stress because of the isolation and uncertainty.’

23. In the statutory declaration by Mr Badarian, he wrote that ‘we were all preoccupied by the fear of COVID-19 and getting vaccinated. Somehow, the applicant overlooked the extension of her visa because of her condition.’ The declaration also noted that the applicant ‘kept talking about her visa and how she was going to extend her visa as she could not leave Australia because of overseas flight restrictions.’

24. The applicant requested that the Tribunal take oral evidence from Mr Badarian. As Mr Badarian had already provided a statutory declaration to the Tribunal, the Tribunal declined to take oral evidence from him.

25. At the Tribunal hearing, the applicant told the Tribunal that her son assisted her to lodge the visitor visa which was granted that allowed her to come to Australia. She told the Tribunal that when she arrived in Australia on this visitor visa, she knew that it was valid until 5 February 2021. She became aware that her flight booked for 18 January 2021 was cancelled approximately a month beforehand. She has not rebooked the flight and is waiting until the outcome of the review application before doing so. She indicated a wish to remain in Australia until June 2023.

26. The Tribunal asked the applicant why she did not lodge the visitor visa once she became aware that her flight on 18 January 2021 was cancelled. She described herself as being in ‘bad shape,’ being under ‘pressure,’ and ‘not being mentally well’ and that things were ‘uncertain.’ She said she was scared to go outside because of the pandemic and was very upset. She said that the time leading up to the visitor visa ceasing on 5 February 2021 went very fast. She did not get her son to assist with her recent visitor visa application because he was in Canada. She said that she was apologetic for not applying for the visitor visa while she held the substantive visa and contrasted this with her history of travel to Australia where she claimed that she had been compliant.

27. The Tribunal notes that the applicant used a migration agent to apply for the visitor visa on 19 February 2021. The Tribunal asked the applicant why she did not use this agent to lodge the visitor visa application before her existing visitor visa expired on 5 February 2022. She attributed this to being sick.

    FINDINGS AND REASONS

28. The issue in the present case is whether the applicant meets PIC 3004(c) for the purpose of PIC 3004 for the purpose of cl 600.223.

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

30. The applicant last held a substantive visa that expired on 5 February 2021. A ‘substantive visa’ is defined to mean any visa other than a bridging visa, criminal justice visa, or enforcement visa.

31. The Tribunal accepts that the global pandemic interrupted international flights. The Tribunal accepts that this meant that many people were stranded in Australia.

32. Accepting the applicant’s evidence that she had a flight booked for 18 January 2021 which was cancelled, this left the applicant with the period between 19 January 2021 and 5 February 2021 to lodge her visitor visa application. She did not do so. Her evidence is that she was aware that her existing visitor visa was to expire on 5 February 2021.

33. The fact that flights were being cancelled meaning the applicant had no ability to depart Australia does not explain why she did not lodge her visitor visa application before her existing visitor visa expired on 5 February 2021.

34. Given that the applicant knew her visitor visa was to expire on 5 February 2021, it does not matter that Mr Bandarian did not know that the applicant’s visitor visa was to expire that date.

35. While it may have been stressful for the applicant to know that her visitor visa was shortly expiring and that she had no means to return to Canada due to the pandemic, she should have directed her effort to lodging a visitor visa during the time she held her existing visitor visa. She was clearly aware that she would find herself stuck in Australia following the cancellation of her booked flight of 18 January 2021 and had clearly turned her mind to doing so, as evidenced by her statutory declaration that she ‘planned to call the Department on many occasions to apply for an extension of my visitor visa.’

36. The Tribunal does not accept that the applicant’s claimed ‘fear,’ or ‘panic,’ or claimed ‘mental stress/unwellness’ meant that she was unable to lodge a visitor visa while she held an existing visitor visa. There was no medical opinion or diagnosis provided either to the delegate or the Tribunal to demonstrate that the applicant was uncapable of lodging a visitor visa within the prescribed timeframes. The Tribunal accepts that the applicant would have been stressed given her situation, but there is no medical evidence to support a proposition that this stress manifested in a psychological condition preventing the applicant from applying for a visitor visa prior to her existing visitor visa ceasing on 5 February 2021. It appears to the Tribunal that the applicant directed her endeavours to trying to arrange flights to return to Canada instead of focusing on lodging a visitor visa before 5 February 2021.

    CONCLUSON

37. The Tribunal is not satisfied that the applicant did not hold a substantive visa due to factors beyond her control as required by PIC 3004(c). As a result, the applicant fails to meet PIC 3004 in its entirety. As the applicant fails to meet PIC 3004 in its entirety, the applicant fails to meet cl 600.223.

    DECISION

38. The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa.

    Nathan Goetz
    Member