Bell (Migration)

[2023] AATA 1077

Bell (Migration) [2023] AATA 1077 (13 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Graham Keith Bell

CASE NUMBER:  2103375

HOME AFFAIRS REFERENCE(S):          BCC2020/2617420

MEMBER:Louise Nicholls

DATE:13 April 2023

PLACE OF DECISION:  Sydney

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 13 April 2023 at 11:28am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant did not hold a substantive visa at the time of application – misunderstanding of advice given by the Department – COVID 19 pandemic – husband’s general health issues – applicant satisfies criterion 3004 – compelling reasons for granting the visa – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

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

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 March 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). The applicant and his wife last arrived in Australia as visit visa holders on 30 October 2019. Departmental records show that the applicant departed Australia on 29 January 2022. The applicant’s wife had departed earlier on 31 October 2021.

2. The applicant applied for the visit visa on 8 November 2020 while he was onshore. He provided a copy of the biodata page of his United Kingdom passport. On 11 February 2021 he also provided a written response to the delegate’s request for further information.

3. The applicant sought review of the visa refusal and together with his application provided the Tribunal with a copy of the delegate’s decision.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because when the applicant applied for the visa, he was not a substantive visa holder and did not meet the Schedule 3 requirements.

5. The applicant appeared before the Tribunal in a combined hearing with his wife on 3 April 2023 to give evidence and present arguments. The Tribunal conducted the hearing by video conference. The Tribunal also received oral evidence from the applicant’s daughter.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

8. Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

9. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.

   Background

10. The applicant is 72 years of age, was born and lives in the United Kingdom. He is married and his wife Sheila has also applied for review of her visit visa refusal. The couple have two daughters: one daughter is living in the United Kingdom and their other daughter, Stacey, lives in Adelaide.

11. The applicant and his wife are retired and like to visit Australia about once every six months to see their adult daughter and grandchildren. The applicant’s daughter lives in Adelaide with her partner and three children.

12. The applicant and his wife last arrived in Australia on 30 October 2019 intending to stay for about six months. By February/March 2020, it was clear that the COVID19 pandemic was beginning to have an impact on flights and border restrictions. At that time, there was no treatment or vaccine.

    Does the applicant satisfy the relevant Schedule 3 criteria?

    Criterion 3001

13. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

14. The applicant provided a copy of the delegate’s decision with his application. The applicant gave oral evidence consistent with the delegate’s decision that he last held a substantive visitor visa on 30 October 2020 and that he made an application for a further visit visa on 8 November 2020.

15. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Criterion 3003

16. Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa and, on 31 August 1994, was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly, criterion 3003 does not apply.

    Criterion 3004

17. Criterion 3004 applies to an applicant 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 has not subsequently been granted a substantive visa.

18. 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 applicable to the last of any entry permits, substantive visas and any subsequent bridging visa held by the applicant.

19. In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that 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.

20. The Tribunal is satisfied that the applicant’s last substantive visa ceased on 30 October 2020 and his application for the visa was made on 8 November 2020.

21. On 5 February 2021 the delegate wrote to the applicant and sought further information from him. The delegate advised “To satisfy criteria 3003 and 3004, you must demonstrate that there were factors beyond your control which prevented you from lodging an application whilst holding a substantive visa and that there are compelling reasons for granting the visa.”

22. In the applicant’s response to the delegate’s request for further information dated 11 February 2021, he stated that he and his daughter had contacted the Department on numerous occasions prior to the expiry of his visit visa on 30 October 2020. The applicant later provided screen shots of telephone contacts with the Department. He was told by Departmental staff that he and his wife could not apply for a further visa because they had a “No further stay” condition on their visas and this had to be waived before they could apply. They took steps to have the “No further stay” condition waived and after they received their waivers, they contacted the Department of Home Affairs again to seek advice as to the next step in the process. The applicant stated that he was told they could not apply for the visas until the day their current visas expired. When they attempted to lodge online visa applications on the evening of 30 October 2020, their applications were rejected. They immediately contacted the Department the next working day, which was 2 November 2020, as they were extremely concerned that they did not have valid visas. They were told their visas had expired and they had to make paper applications and post the applications as they could not apply online. They immediately posted their applications to the Department that week by Registered Express Post after gathering all the necessary attachments.

23. The applicant stated that their Emirates flights had been cancelled shortly before their visa expiry date of 30 October 2020 because direct flights from Adelaide had been cancelled and they were told they would need to fly from another state. However, the only safe state at that time was Queensland. Emirates were also requesting a PCR test so that they could transit through Dubai to get to the United Kingdom. They made enquiries of South Australian Health and the Brisbane health authorities but found that these agencies had no information on where to get pre-flight PCR tests. No one they spoke to had clear information as to what they could do to fly back to the UK. The applicant and his wife also wanted to stay longer with their daughter to help with the care of their grandson who had a few development difficulties which resulted in him not being able to attend school in 2020.

24. At the time of writing the response in February 2021, the applicant was not able to fly to the United Kingdom due to the COVID 19 outbreak there. Further, at that time, the United Kingdom was not accepting flights from Dubai. The applicant was also concerned about flying to the United Kingdom without being vaccinated as he and his wife were in the “at risk” category being over 65 years of age and he was asthmatic.

25. On 2 June 2021 the applicant applied for review of the refusal decision as well as making a priority request with the Tribunal on compassionate and compelling grounds. His application for priority was not granted as it did not fall within Tribunal guidelines for granting priority.

26. The applicant departed Australia on 29 January 2022.

27. On 27 March 2023 the applicant provided a number of documents to support his application for review. They included

    ·             Screen shots of 20 calls made to the Department of Home Affairs during the relevant period.

    ·            An advice from the government of the UAE dated 6 June 2021 as to the requirement for travellers to the United Kingdom to undertake 10 days in a quarantine hotel at their own expense if travelling through Dubai and advice from Emirates to the same effect.

    ·            A handwritten statement made by the applicant.

    ·            A text message from his doctor to advise him that he was due for his annual review of his breathing condition (COPD[1]).

    ·            A letter from the UK National Health service dated 27 September 2021 advising the applicant that he was clinically extremely vulnerable to COVID 19 and what precautions he should take to protect himself.

    ·            A media report that the first direct flights to the UK commenced in May 2022.

    ·            Notification from the Department of Home Affairs that the condition 8503 (No further stay) on the applicant’s visa had been waived on 22 September 2020.  

    [1] Chronic obstructive pulmonary disease.

28. In the applicant’s handwritten statement, he noted that he and his wife had been coming to Australia for a number of years to visit their daughter and grandchildren. He stated they had been coming and going in regular six-monthly intervals as would be recorded in Departmental records.

29. The applicant and his wife arrived in Adelaide on 29 October 2019 and in December/ January 2020 COVID 19 was starting to emerge as a major health emergency.

30. In February 2020 the applicant had two operations to repair a hernia. The couple had booked a return flight to the United Kingdom for 31 March 2020 and the applicant was assured that he would have enough time to recover from his surgery in time for such a long flight.

31. However, on 26 March 2020 the couple received an email from Emirates Airlines to say their flights had been cancelled. When he called the enquiry number, he was told that Dubai airport was closed for the foreseeable future. When he followed up some weeks later, he was told that Emirates would no longer be flying from Adelaide when they started operating again from Australia.

32. The applicant checked the visa expiry date of 30 October 2020 and observed that their daughter had been making several applications on their behalf online but was receiving a message that the Department could not process the applications at that time. The applicant stated that his daughter later telephoned the Department and was told they had to fill out paper applications. They applied for the visit visas in November 2020 and their applications were refused.

33. When Emirates started operating again, they found that they could not fly to Manchester and also found that they had to enter a managed quarantine hotel at their own expense if they returned to the UK. The applicant stated that he and his wife were pensioners and did not have the funds available to pay for the quarantine hotel.

34. The applicant also contacted his doctor in the United Kingdom, and she advised him not to travel without being vaccinated due to his COPD[2] diagnosis. He was vaccinated on 3 June 2021, 26 August 2021 and received the final booster on 12 January 2022. Once he was fully vaccinated, he departed Australia and returned to the United Kingdom in January 2022.

    [2] Chronic Obstructive Pulmonary Disease (COPD)

35. The applicant, her husband and their daughter gave oral evidence consistent with the written material provided to the Tribunal.

    Was the applicant not the holder of a substantive visa at the time of application due to factors beyond his control?

36. The Tribunal accepts that the applicant was not the holder of a substantive visa at the time of his application and that the reason he did not hold a substantive was due to factors beyond his control.

37. The Tribunal accepts that the applicant and his wife applied for, and were granted, waivers of condition 8503 on their visit visas on 22 September 2020. It is satisfied that they then had a number of conversations with the Department about seeking a further visit visa. The applicant claimed he was told by an officer of the Department that they could not apply for visas until the last day their visa was current. The delegate noted in her decision that the applicant made contact with the Department on 3 September 2020 and was advised that they should only apply for further visas before the date their visas were due to cease. Further the delegate noted that the letter confirming their visa waiver had information about their visa status and instructions on what to do next to rectify their status.

38. The Tribunal questioned the applicant about the advice he was given, and it appears that it is possible that he misunderstood the advice. He claimed that they were told that they had to apply on the last day of the validity of their visas and they did so, but their applications were rejected, possibly due to time zone differences or technical issues. It appears likely that they were advised that they had until the last day of their substantive visa to make an application for a further visit visa otherwise they had to meet the Schedule 3 requirements. Having taken and considered the oral evidence of the applicant, the Tribunal considers it possible that the applicant and his wife misunderstood the Department’s advice and delayed making the application until the last day they held a substantive visa. Subsequently their online application was rejected for either time zone differences or technical reasons.

39. The applicant gave evidence that he understands that he needed to take responsibility for any mistakes in making his visa application. However, he and his wife faced a unique situation in that their travel plans were significantly impacted by the emergence of the COVID 19 pandemic in 2020. He referred to his own health issues, the cancellation of flights and flight restrictions and general uncertainty surrounding the situation for travellers during the first year of COVID 19 restrictions.

40. The Tribunal is not obliged to follow the policy guidelines set out in the Department’s Procedures Advice Manual (PAM3) but it considers these guidelines give some assistance in matters where decision makers must apply some subjective judgment.

41. The Department’s policy guidelines state that the purpose of the Schedule 3 criteria are to:

    “encourage non-citizens who have a legitimate basis for remaining in Australia to apply for a further visa before their current substantive visa ceases,

    discourage non-citizens from remaining in Australia beyond the period of effect of their substantive visa, and

    prevent non-citizens from benefiting by remaining in Australia unlawfully, by possibly acquiring visa eligibility while remaining here without lawful permission.” 

42. The guidelines also state that “It is recognised, however, that there are situations in which non-citizens remain in Australia without a substantive visa through circumstances over which they have no control and situations where there are compelling reasons for granting them a visa to remain.”

43. The guidelines note that criteria 3004 (c) to (h)

    “include subjective elements, which means that:  

    ·a decision on whether an applicant satisfies these criteria will not necessarily be clear cut or beyond dispute

    ·a decision maker will need to exercise judgment, assess all the circumstances of the applicant against the meaning and intention of the criteria, and form an opinion as to whether the criteria are satisfied.” 

44. Generally, the Tribunal would not consider that a mistake in making an application outside time constraints is a matter beyond an applicant’s control. However, the evidence indicates that the error in applying out of time was not a mistake made through mere inadvertence. It accepts that the applicant intended to make a valid application within the period allowed but failed to do so, most likely, through his own misunderstanding of advice given by the Department.

45. The Tribunal notes that the applicant’s decision-making capacity was affected by the confusion caused by airline cancellations, border closures, quarantine requirements and significant death and severe illness outcomes outside Australia.

46. In these circumstances, and taking into account, his general health issues and the fears and uncertainties experienced in 2020 due to the COVID 19 pandemic the Tribunal accepts that the failure to apply while being a substantive visa holder, in this instance, was due to factors beyond the applicant’s control.

    Are there compelling reasons for granting the visa?

47. The Tribunal finds that there are compelling reasons for granting the visa.  

48. The expression ‘compelling reasons’ is not defined for these purposes. The ordinary meaning of ‘compelling’ (to compel) may include ‘to urge irresistibly’ and to ‘bring about moral necessity’. To be ‘compelling’ the reasons in question must force or drive the decision-maker irresistibly to some end.[3] The word ‘compelling’ may include reasons which are forceful, involve moral necessity or are convincing, but does not of its own, necessarily require an involuntary element.[4]

    [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

    [4] Paduano v MIMIA (2005) 143 FCR 204 at [37].

49. The Tribunal accepts there were compelling reasons for granting the visa. The Tribunal accepts that the applicant was suffering from COPD at the time of application, and this put him at high risk of death or severe illness if he had contracted COVID19 at that time. In 2020, there were no vaccines available, and if the applicant could have arranged departure, he would need a negative PCR test before entering Dubai and then would have to undergo quarantine in Dubai and later in the United Kingdom. As he explained, there was no clear advice regarding the availability of PCR testing at that time and he and his wife would have had to travel to Queensland to depart Australia on an Emirates flight. The evidence before the Tribunal indicates that direct flights to the United Kingdom only resumed in May 2022.

    Compliance and intended compliance with visa conditions.

1. The applicant gave evidence, and the Tribunal accepts that he has substantially complied with the conditions of his last substantive visa and intends to comply with visa conditions. His migration history supports this evidence.

   Whether the applicant would have been entitled to be granted a Visitor (Class FA) visa on the day the applicant last held a substantive visa.

2. The Tribunal accepts that the applicant would, in all likelihood, have been entitled to be granted a Visitor (Class FA) visa on the day the applicant last held a substantive visa. The Tribunal notes that the applicant departed Australia on 29 January 2022 after he had been fully vaccinated.

3. For the above reasons, the applicant satisfies criterion 3004.

   Criterion 3005

4. Criterion 3005 requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or regs 35AA, 42(1A) or 42(1C) of the Migration (1989) Regulations. There is no evidence before the Tribunal which would indicate that a visa or entry permit has been granted on such a basis.

5. Accordingly, the applicant satisfies criterion 3005.

   Conclusion

6. For these reasons, the applicant satisfies criterion 3001, 3004 and 3005 for the purposes of cl 600.223.

7. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 600 visa.

   DECISION

8. 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.

   Louise Nicholls
   Senior Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   Schedule 3

   3001

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

   (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

   (c)if the applicant:

   (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)      entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)      the last day when the applicant held a substantive or criminal justice visa; or

   (iv)    the day when the applicant last entered Australia unlawfully; or

   (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

   (i)       the day when that last substantive visa ceased to be in effect; and

   (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

   3003

   If:

   (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

   (b)on 31 August 1994, the applicant was either:

   (i)       an illegal entrant; or

   (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

   the Minister is satisfied that:

   (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without 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 the conditions that apply or applied to:

   (i)       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

   (ii)      any subsequent bridging visa; and

   (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

   (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

   (h)the last entry permit (if any) held by the applicant was not granted 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.

   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.

   3005     

   A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

   (a)this Schedule; or

   (b)Schedule 6 of the Migration (1993) Regulations; or

   (c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.