Bhattacharjee (Migration)

[2022] AATA 764

Bhattacharjee (Migration) [2022] AATA 764 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Krishna Bhattacharjee

CASE NUMBER:  2103801

HOME AFFAIRS REFERENCE(S):          BCC2020/2435377

MEMBER:Luke Hardy

DATE:17 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 17 March 2022 at 1:01pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – booked return flight cancelled by airline – COVID-19 pandemic travel restrictions – factors beyond the applicant’s control – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001

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 5 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).

2. The visa applicant applied for the visa on 7 October 2020. The delegate refused to grant the visa on the basis that the applicant lodged the application at a time when she did not hold a substantive visa and did so more than 28 days after her last substantive visa expired on 20 August 2020 (“the relevant day”). The delegate thus found that she did not meet Schedule 3 criterion 3001. For this reason the delegate did not assess whether the applicant met any other relevant criteria for the grant of the visa.

3. The applicant sought review by this Tribunal and the matter was constituted to me. I find that the review application is valid. I set the matter for a hearing on 22 March 2022.

4. The applicant is represented in relation to the review by her daughter.

5. On 15 March 2022, the Tribunal received a response to the hearing application in which the applicant advised that she would not be participating in the scheduled hearing, and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.

6. For the following reasons, I have concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant can meet Schedule 3 criterion 3001 and then go on to meet other relevant criteria.

8. The delegate wrote to the applicant on 17 February 2021 inviting her to provide comment in relation to the information that she did not hold a substantive visa within 28 days of lodging her application for a subclass 600 visa.

9. On 25 February 2021, the delegate received a reply, written by the applicant’s daughter acting as her representative:

   ·     First of all, in your letter dated 17 February 2021, you have requested my mother to provide comment in relation to the fact that she did not hold a substantive visa within 28 days of her visa expiring (as I understand). You have also mentioned in your letter to provide a response via the ImmiAccount. I have attempted to do that, but unfortunately could not find a spot in the ImmiAccount through which I am able to reply, therefore I am providing my comments in an email;

   ·     I sincerely apologise, that my mum did not hold a substantive visa within 28 days of her original tourist visa expiring. This was due to the fact that we failed to keep ourselves updated with the Immigration laws and due to the adverse impact of the pandemic, our focus momentarily got diverted to our largely impacted restaurant business, mental health and disrupted family life. My mother was scheduled to return to India well before her visa was about to expire, but then the pandemic hit, due to which Thai airways cancelled the flight in which she was supposed to travel. I apologise for misunderstanding the rules, but we unknowingly had an inaccurate interpretation in our minds, that The Department of Foreign Affairs will automatically extend the Visitor visa of the visitors who were unable to leave the country due to the outbreak of the pandemic. However, I understand that we should have contacted the department to request further information. 

   ·     When a couple of friends and family alerted us that we were supposed to apply for an extension of Visitor visa, I contacted the department and with the instructions from a team member in your department, applied for the Bridging Visa and the tourist visa extension to rectify the breach of law which we have accidentally incurred. There was absolutely no intention of over stay. I am happy to furnish you with email trails I had with Tran, the case officer, should you require. I also request you to check her history of travel, from which you will be able to confirm that she has never extended her length of stay unlawfully. 

   ·     I understand that there is no provision to grant a Tourist Stream Visa (subclass 600) to a person who applies for the visa more than 28 days after their last substantive visa ceased, however, could you please assist me with what am I supposed to do next? Is there any visa which might let my mother stay until the end of July 2021? The reason for this is because the impact of the pandemic is still widespread in Kolkata, her home city, and given her age, I am worried whether she will be able to survive the impact of Covid 19, if she has to return at this stage. One more reason for my request is because, this time, the reason for her travel was to attend my sister, Ms Samita Bhattacharjee's wedding, which was scheduled for July 2020. The wedding had to be postponed due to the pandemic and is scheduled to happen in July 2021, I would really want my mother to attend the wedding of my little sister as my father passed away and she is the only parent who is still alive to do the rituals. As my mother's age is above 65 and due to her health reasons, it is very unlikely she will be able to visit Australia, where both daughter's live. 

   ·     However, if you think there is absolutely no possibility to let her stay until July 2021, please let me know and I will organise her return flight to India within 21 days of this email, as I am unsure of the availability of flights. 

10. Clearly the applicant is aware of not having met Schedule 3 criterion 3001. Most of the information in the response to the delegate, such as information about a postponed wedding, is therefore irrelevant. It is the applicant’s responsibility to be aware of her status and to comply with the conditions of any visa she holds. That her daughter and son-in-law were distracted by various pressing factors at the time her last substantive visa expired is unfortunate but does not take away from her own obligations in this matter.

11. I find that the application for a Subclass 600 (Visitor) (Class FA) visa in the Tourist Stream was lodged more than 28 days after the applicant last held a substantive visa. Therefore the applicant does not meet Schedule 3 criterion 3001 of regulation 600.223(2).

    DECISION

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

    Luke Hardy
    Member