Bhattarai (Migration)

[2022] AATA 1395

Bhattarai (Migration) [2022] AATA 1395 (28 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nirmal Bhattarai

REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)

CASE NUMBER:  2102157

HOME AFFAIRS REFERENCE:               BCC2020/2352236

MEMBER:L. Symons

DATE:28 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 April 2022 at 10:43am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – COVID19 travel restrictions – factors beyond the applicant’s control – compelling reasons for granting the visa – family illness – substantial compliance with the visa conditions – period of unlawful residence – no work condition – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 600.211, 600.223, 600.611; 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 Immigration on 12 February 2021 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Immigration (the Department) for the visa on 22 September 2020. 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.223(2) because he did not meet the requirements of Schedule 3, criterion 3004.  

4. The applicant appeared before the Tribunal, via video, on 20 April 2022 to give evidence and present arguments. The hearing was conducted as a joint hearing of an application for review made by his spouse, Ms Prativa Poudel, with the consent of both parties. Each of them gave evidence in their own right and as a witness for the other.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. The issue in this case is whether cl.600.223, as referred to in the attachment below, is met.

8. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 12 February 2021 which indicates that his last substantive visa was a subclass 500 Student visa that ceased on 15 September 2020, he applied for the subclass 600 Visitor visa on 22 September 2020 and was not the holder of a substantive visa at that time. Therefore, he is required to satisfy the requirements of cl.600.223(2).

9. Clause 600.223(2) 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 and the last substantive visa held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, he must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. His visa application was refused by the Department on the basis that he did not satisfy 3004 as the delegate was not satisfied that there were factors beyond his control which prevented him from applying for the subclass 600 Visitor visa whilst holding a substantive visa.

10. Schedule 3 criterion 3004 is referred to in the attachment below. In the present case, the issue before the Tribunal is whether the applicant satisfies 3004(c) and 3004(d) which require 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.

11. The Department’s Decision Record indicates that in his application for a Visitor visa filed on 22 September 2020 the applicant stated:

    My visa expired on 15^th Sep 2020 but could not return to Nepal due to Covid 19 (Travel restrictions and no more flights to Nepal). I was intending to return to Nepal. However, because of the travel restriction forced in both Australia and Nepal, due to COVID19 pandemic, I am not permitted to return.

12. The Department’s Decision Record indicates that on 3 February 2021 the delegate wrote to the applicant and invited him to comment on adverse information. He responded in a written statement dated 7 February 2021. In his statement, he stated that he has abided by visa conditions and Australian laws and values during his stay in Australia. His mother was admitted to hospital in Nepal on 10 September 2021 and discharged on 18 September 2021. She was diagnosed with a Rheumatic Heart Disease, a provisional diagnosis of Covid-19 with heart failure and other related health issues. Due to travel bans in Australia and Nepal he was unable to return to Nepal to see his mother. He was “psychologically distressed and was in pain and agony”.

13. In his response, the applicant stated that he was “in so much distress, anxiety and depression” due to his mother’s illness. She was subsequently found to be Covid-19 negative but required extensive treatment and at times doctors described her condition as potentially life threatening.  In addition, the lockdown during the Covid-19 pandemic took a toll on his well-being. Being unable to support his parents added to his stress. Since February 2020, his spouse has suffered from abdominal pain and a debilitating uterus condition for which she was receiving medical treatment. He had to support her physically and emotionally.

14. In his response, the applicant stated that he missed the date on which his substantive visa expired by a week. If his mother had not become seriously ill just before his visa expired, he would not have lost focus and missed the date his visa expired. These factors were beyond his control and there are compelling reasons for the grant of the visa. He provided the Department with a Medical Certificate from Nepal dated 24 February 2021 in relation to his mother, a Medical Certificate dated 7 February 2021 in relation to his spouse, his Marriage Registration Certificate from Nepal, a Verification Certificate of Relationship from Nepal  and documents in relation to his academic qualifications in India and Australia.

15. The applicant provided the Department with a written submission dated 8 February 2022 from his migration agent. His migration agent set out the schedule 3 criteria, referred to the applicant’s evidence and submitted that the applicant was not the holder of a substantive visa due to factors beyond his control and that there are compelling reasons for the grant of the visa.

16. During the hearing, the Tribunal discussed the criteria for the subclass 600 Visitor visa with the applicant. Some of the evidence he gave was not consistent with his evidence in his application for the Visitor visa and his written statement dated 7 February 2021 provided to the Department. In his application for the Visitor visa lodged on 22 September 2020, he stated that his visa expired on 15 September 2020, he intended returning to Nepal but was unable to do so due to the travel restrictions in Australia and Nepal. He made no mention of his mother’s illness and hospitalisation or his spouse’s medical problems and treatment.

17. Despite his claims in his written statement dated 7 February 2021 of the distress, anxiety and depression he suffered due to his mother’s illness and the psychological distress, pain and agony he was in because he was unable to see his mother, the applicant did not return to Nepal to visit her at the time when, according to him, doctors described her condition as potentially life threatening or since then. The records of the Department indicate that since he first came to Australia on 13 October 2013, he has departed Australia on two occasions; the first between 2 March 2018 and 21 March 2018 and the second between 25 April 2019 and 3 May 2019.

18. The Tribunal has before it information that indicates that on 25 March 2020 Australia declared an overseas travel ban which prohibited Australian citizens and Australian permanent residents from leaving Australia. As the applicant and his spouse are not Australian citizens or Australian permanent residents this travel ban did not apply to them.[1] The government of Nepal closed its international borders from 24 March 2020 to 31 August 2020. All national and international flights during that period ceased and were banned. There were a few exceptions to those rules.[2] The government of Nepal closed its international borders for a second time from 6 May 2021 to 22 September 2021. This extended past September 2021 for passengers arriving and transiting from certain African countries and Hong Kong.[3] 

    [1] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 made under section 475 of the Biosecurity Act 2015 (Cth).

    [2] ‘Responding to COVID-19: Health Sector Preparedness, Response and Lessons Learnt’, Government of Nepal: Ministry of Health and Population – Kathmandu, 2021, page 72; ‘Situation Update #17 – Coronavirus Disease 2019 (COVID-19)’, World Health Organisation Country Office for Nepal, 12 August 2020, page 9.

    [3] ‘Situation Update #55 – Coronavirus Disease 2019 (COVID-19)’, World Health Organisation Country Office for Nepal, 9 May 2021, page 11; ‘Notice Regarding Travel Restriction’, Government of Nepal: Department of Immigration, 2 December 2021.

19. The Nepalese government allowed the return of Nepalese citizens when international flights resumed on 1 September 2020 after the first lockdown.[4] There are a number of airlines that fly from Australia to Kathmandu directly or indirectly through connecting flights. This includes Singapore Airlines, Malaysia Airlines, Nepal Airlines connecting with either Air India or Cathay Pacific, Emirates and Qantas connecting with Vistara. The Tribunal put the above information to the applicant, pursuant to s.359AA of the Act, and noted that this indicates that he was able to return to Nepal between 1 September 2020 and 15 September 2020 prior to the expiry of his Student visa.

    [4] ‘Responding to COVID-19: Health Sector Preparedness, Response and Lessons Learnt’, Government of Nepal: Ministry of Health and Population – Kathmandu, 2021, page 46.

20. The Tribunal noted that the fact that the applicant did not return to Nepal, despite his claims about his mother, may lead it to the conclusion that his mother was not sick, the Medical Certificate he provided the Department is not an authentic document, he applied for the Visitor visa to extend his residence in Australia and to continue working here and not because he was prevented from returning to Nepal due to travel bans. The Tribunal noted that it may find that he does not satisfy the criteria for a Visitor visa.

21. The applicant responded that he was told that he was still able to travel during that time. He was at the end of the time to apply for a subclass 485 visa. He was chatting with his mother and told her that his Student visa was about to expire and he had to apply for another visa for 2 years. She told him to fix his things and she would be alright. His mother is okay for now. He will see her after he applies for a subclass 485 visa. Earlier in his evidence, he stated that his migration agent advised him that he could go to Nepal but would not be able to return to Australia as he was on a Bridging C visa.

22. The applicant’s evidence to the Tribunal is significantly different to his evidence to the Department. It is not consistent with his claims that he intended returning to Nepal after he completed his studies and was prevented from doing so due to travel bans in Australia and Nepal. It is also not consistent with his claims that the impact of his mother’s illness and hospitalisation and his inability to return to Nepal to visit her affected his ability to apply for the Visitor visa prior to the expiry of his Student visa.

23. The records of the Department indicate that the applicant was first granted a subclass 573 Student visa on 4 October 2013 and arrived in Australia on 13 October 2013. Whilst in Australia, he was granted a subclass 500 Student visa on 29 May 2017, a second subclass 500 Student visa on 19 November 2018 and a third subclass 500 Student visa on 15 November 2019. The third subclass 500 Student visa expired on 15 September 2020 and he thereafter remained in Australia as an unlawful non-citizen. He was granted a Bridging C visa on 23 September 2020 which was subject to condition 8101.

24. The records of the Department of Education’s Provider Registration and International Student Management System (PRISMS) indicate that the applicant completed a Certificate IV in Information Technology Networking on 30 June 2014, a Certificate IV in Business on 30 December 2014, a Diploma in Business on 30 June 2015 and a Bachelor of Professional Accounting. He was expected to complete his Bachelor of Professional Accounting on 31 December 2017 but kept extending his enrolment until he finally completed his Bachelor of Professional Accounting on 15 July 2020. He subsequently provided the Department with documents that indicate that he completed a Certificate III in Commercial Cookery at the Institute of Advancing Careers on 8 July 2020 and a Certificate IV in Commercial Cookery at the Institute of Advancing Careers on 11 August 2020. The Department of Education has no record on PRISMS of him having enrolled in and completed these two Certificate courses.

25. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that he was given Student visas to study in Australia, he completed the studies for which he was given the Student visas on 15 July 2020 and thereafter no longer needed to remain in Australia. The Tribunal noted that, having completed his studies on 15 July 2020, it would expect him to have then considered his future plans in relation to either returning to Nepal or applying for another visa to stay in Australia. The Tribunal noted that he had two months from when he completed his Bachelor degree on 15 July 2020 until his Student visa expired on 15 September 2020.

26. The Tribunal noted that the applicant had plenty of time in which to apply for another visa or return to Nepal and this was well before his mother was admitted to hospital on 10 September 2020. The Tribunal informed him that it may therefore find that the reason why he was not the holder of a substantive visa at the time he applied for the Visitor visa was not due to factors beyond his control and that there are no compelling reasons for granting the visa. He responded that he always had so many issues with what was going on. He had to help his spouse physically and emotionally. There was Covid everywhere and he was not able to focus on the dates. He was on time for everything. It was the biggest mistake he made.

27. The applicant gave evidence that he instructed an organisation called Expert Education and Visa Services to prepare his application for a subclass 485 Temporary Graduate visa. He stated that the organisation had qualified Education Agents as well as registered migration agents. The Tribunal is of the view that the onus was on the applicant to give his migration agent instructions to file his application for a subclass 485 Temporary Graduate visa upon completion of his formal studies and prior to the expiry of his Student visa and to give him the necessary instructions and documents to do so.

28. The applicant’s evidence is that his spouse has painful periods, has been diagnosed with endometriosis and has been receiving medical treatment since February 2020. His spouse’s medical condition was therefore not something that occurred just before his Student visa was due to expire on 15 September 2020. It had been an ongoing issue since February 2020. He claimed that he has been providing his spouse with physical and emotional support. The Tribunal accepts that he may have been providing his spouse with emotional support but notes, however, that he was still able to keep working until August 2020 and keep studying until he completed his formal studies on 15 July 2020. He was thereafter free to focus on applying for a subclass 485 Temporary Graduate visa and support his spouse. The Tribunal is not satisfied, on the evidence before it, that his spouse’s medical condition prevented him from applying for a subclass 485 Temporary Graduate visa, a subclass 600 Visitor visa or any other visa prior to the expiry of his subclass 500 Student visa.  

29. The Tribunal accepts that the Covid-19 pandemic and the resultant restrictions including lockdowns may have affected the applicant psychologically as it did with many other people in the community. He has not provided the Tribunal with any expert evidence to indicate that he was suffering from mental health issues at the time his Student visa was due to expire. The Tribunal is not satisfied, on the evidence before it, that the Covid-19 pandemic and the resultant restrictions and/or his mental health at that time prevented him from applying for a subclass 485 Temporary Graduate visa, a subclass 600 Visitor visa or any other visa prior to the expiry of his subclass 500 Student visa.   

30. The Tribunal has also considered the provisions of cl.600.211 for the grant of the subclass 600 Visitor visa. This criterion requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by the applicant was subject and  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject and any other relevant matter.

31. During the hearing, the Tribunal asked the applicant why he applied for a subclass 600 Visitor visa. He responded that when he realised that his Student visa had expired, he contacted a friend by telephone and his friend referred him to a migration agent in Brisbane. He contacted this migration agent and was advised to apply for a Visitor visa and once he was granted the Visitor visa, he could then apply for a subclass 485 Temporary Graduate visa. When asked about his plans if he is granted a subclass 600 Visitor visa, he responded that his spouse really wants to study so she will start studying. She is almost 30 years old now and they are also planning to have a baby. She needs to have further medical treatment as her fertility rate is low. He will start working. He likes to work and misses being at work. He was a Head Chef and was praised everywhere he went.

32. The Tribunal asked the applicant’s spouse what plans she has if granted a Visitor visa. She responded that she will first go to Liverpool Hospital and find out if there is any other way she can heal her body. She and her spouse are turning 29 years and 30 years old this year and are planning to have a baby. She wants to start studying and plans to enrol in the June or July 2022 intake. Once things settle down, they will travel to Nepal. After she and her spouse obtain Visitor visas, they plan to then apply for Skilled visas. It is their pathway to a lot of opportunities. They want to live in Australia and have a family here.

33. The Tribunal put to the applicant the above evidence given by his spouse, pursuant to s.359AA of the Act, and noted that it may lead it to the conclusion that he did not apply for a Visitor visa because he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal noted that it may find that he does not satisfy the criteria for a Visitor visa because he does not satisfy s.600.211. The Tribunal also raised as an issue the fact that a Visitor visa will be subject to (mandatory) condition 8101 (must not work in Australia) and (mandatory) condition 8201 (must not engage in study or training in Australia for more than 3 months).  

1. The applicant responded that it is not like that. As soon as he gets a Visitor visa, he will apply for a Student visa for his spouse. After that, he will be able to work. It is not like he can work immediately. He will not break the laws.

2. The Tribunal does not find the applicant’s response to be convincing. It also raises other issues. Clause 600.611 provides that a subclass 600 Visitor visa in the Tourist stream may also be subject to conditions 8501, 8503 and 8558. Condition 8503 provides that the visa holder will not be entitled to be granted a substantive visa, other than a Protection visa, while the holder remains in Australia. Condition 8558 provides that a visa holder must not stay in Australia for more than 12 months in any period of 18 months. When the Tribunal raised as an issue with the applicant its concerns that he did not satisfy the requirements for a subclass 600 Visitor visa, he declined to comment.

   Findings

3. Having considered all the evidence and the submission, the Tribunal finds that the applicant ceased to hold a substantive visa on 15 September 2020 and accordingly ceased to hold a substantive visa on or after 1 September 1994. The Tribunal is not satisfied, on the evidence before it, that he was not the holder of a substantive visa at the time of application on 22 September 2020 due to factors beyond his control. Accordingly, the Tribunal finds that he does not meet the requirements of Schedule 3, criterion 3004(c). The Tribunal is not satisfied, on the evidence before it, that there are compelling reasons for the grant of the visa. Accordingly, the Tribunal finds that he does not meet the requirements of Schedule 3, criterion 3004(d).

4. As the applicant does not satisfy criterion 3004(c) and criterion 3004(d), he is unable to satisfy criterion 3004 in its entirety. As he does not satisfy criterion 3004, he is unable to meet the requirements of cl.600.223(2)(b) and accordingly cl.600.223. 

5. The Tribunal finds that the applicant did not comply with his subclass 500 Student visa as he did not depart Australia prior to the expiry of his subclass 500 Student visa on 15 September 2020 and remained in Australia as an unlawful non-citizen after the expiry of his subclass 500 Student visa. The Tribunal is not satisfied that the applicant intends to comply with mandatory condition 8101 (no work) if granted a Visitor visa and is of the view that he will work to support himself and his spouse. The Tribunal is also not satisfied that he intends to comply with condition 8558 and is of the view that he is seeking a pathway to permanent residence in Australia. Therefore, the Tribunal is not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Accordingly, the Tribunal finds that he does not meet the requirements of cl.600.211.

   CONCLUSION

6. For the above reasons, the Tribunal finds that the applicant does not satisfy the requirements of Schedule 3, criterion 3004 and therefore finds that the requirements of cl 600.223 are not met.

7. For the above reasons, the Tribunal finds that the applicant does not satisfy the requirements of cl.600.211.

   DECISION

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

   L. Symons
   Member

   ATTACHMENT

   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.

   600.211 

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c)  any other relevant matter.

   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.