Brar (Migration)

[2021] AATA 2475

Brar (Migration) [2021] AATA 2475 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kulwinder Kaur Brar

CASE NUMBER:  2016788

HOME AFFAIRS REFERENCE(S):          BCC2020/1533514

MEMBER:Mara Moustafine

DATE:2 July 2021

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 02 July 2021 at 4:00pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – previous three-year visitor visa ceased after maximum 12-month stay – 28th day fell on Saturday, so lodgement required by midnight Monday – application received on Sunday, within time – factor beyond applicant’s control – flight home cancelled because of COVID-19 travel restrictions – compelling reasons for grant of visa – support for daughter-in-law with newborn child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criteria 3001, 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 on 2 November 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a 65 year old citizen of India who arrived in Australia on 11 April 2019 on a Visitor visa valid until 11 April 2020.

3. The visa applicant applied for the Visitor  visa currently under review on 10 May 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.

4. In her Visitor visa application form the applicant explained that she had been granted a 3 year multiple entry Visitor visa and was due to depart for India on 28 March 2020, within the 12 month maximum stay in 18 months provision. However, her flight was cancelled due to the COVID-19 travel restrictions. As her visa was subject to Condition 8503, she applied for a ‘no further stay waiver’ which was approved on 4 April 2020. She stated that she was applying for the Visitor visa so she could remain in Australia until it was safe for her to return home as flights had been suspended and COVID-19 was rife in India. She also wished to provide support for her daughter-in-law following the birth of her daughter by emergency C-section as her son was the only one working in the family. In support of her application, the applicant submitted her original Visitor visa grant notice, her confirmed flight booking to India on 28 March 2020 and the notification by the airline on 19 March 2020 of suspension of outbound flights, her daughter-in-law’s hospital records and a statutory declaration by her son explaining the circumstances surrounding his mother’s visa application.

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 because at the time she applied for the visa she did hold a relevant substantive visa and she did not satisfy criterion 3001 in Schedule 3 to the Regulations.

6. The applicant applied to the Tribunal for a review of this decision on 17 November 2020 and provided a copy of the delegate’s decision record with her application.

7. In a statement submitted with her review application, the applicant set out her migration history as follows: she had been granted a three year Visitor visa (24 March 2019 to 24 March 2022) with a maximum stay of 12 months in 18 months.  She had a flight booked to depart Australia on 28 March 2020, before her 12 month period ended on 11 April 2020, but had been unable to do so due to COVID19 related flight suspension. She then applied for a no further stay waiver which was approved by the Department. She had no knowledge that she needed to apply for a substantive visa as her initial visa had been granted for 3 years. She applied for the Visitor visa online within 28 days of her visa expiring but was requested to send the application by post. She mailed the application on 8 May 2020 and it was received on 10 May 2020.

8. The applicant appeared before the Tribunal by teleconference on 28 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the requirements of cl.600.223 of the Regulations.

11. Relevant to this matter cl. 602.223(2) provides:

    (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:

    i)   426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    ii)     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.

12. Criterion 3001 states that the application is validly made within 28 days after ‘the relevant day’. In the applicant’s circumstances, the relevant day is the last day when they held a substantive visa.

13. According to information contained in the delegate’s decision record, the applicant last held a substantive visa when her Visitor (subclass 600) visa ceased on 11 April 2020. The current Visitor visa application was made on 10 May 2020. The delegate found that the applicant did not satisfy criterion 3001 as the application was not made within 28 days after the applicant last held a substantive visa.

14. However, the Tribunal notes that, according to the guidelines for Departmental decisionmakers[1], if the 28^th day after the applicant ceases to hold a substantive visa falls on a weekend, the criterion is satisfied if the application is lodged on or before midnight on the first day following the 28th day that is not a Saturday, a Sunday or a public or bank holiday. The Tribunal considers this to be a correct interpretation of the principles.

    [1] [Sch3] Additional criteria applicable to unlawful non-citizens and certain bridging visa holders (immi.gov.au) >

    In the present case, as the 28^th day fell on Saturday 9 May 2020, the final day for lodgment became Monday 11 May 2020. Accordingly, as her application was received by the Department on 10 May 2020, the Tribunal finds that the applicant satisfies criterion 3001 of the Schedule 3 criteria.

15. The Tribunal has proceeded to consider whether the applicant meets the requirements of Schedule 3 criterion 3004 as the Schedule 3 criterion relevant to the applicant’s matter.

16. Schedule 3 criterion 3004(a) requires the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994. The Tribunal is satisfied that the applicant ceased to hold a substantive visa on 11 April 2020, and therefore satisfies (a). Schedule 3 criterion 3004(b) is an alternative to (a) and therefore does not apply.

17. Schedule 3 criterion 3004(c) requires that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control. Based on the applicant’s evidence, the Tribunal accepts that applicant was due to depart Australia on 28 March 2020 while holding her previous substantive Subclass 600  Visitor visa but was unable to do so due to COVID19-related travel restrictions and then applied and was granted a waiver of her no further stay condition while her previous substantive visa was still valid. The Tribunal accepts the applicant’s evidence that she assumed that, as her initial Visitor visa had been granted for 3 years, she did not need to apply for another substantive visa, although this was mistaken. The Tribunal notes that the applicant lodged an application for the Visitor visa after the expiration of her substantive visa. The Tribunal accepts that the applicant did not intentionally become unlawful or not be the holder of a substantive visa. The Tribunal accepts that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control. The Tribunal is satisfied the applicant satisfies (c).

18. Schedule 3 criterion 3004(d) requires there are compelling reasons for the granting of the visa. The Tribunal is satisfied that the applicant was unable to return to India as scheduled due to the suspension of flights due to COVID-19. The Tribunal accepts that the applicant required the Visitor visa in order to remain lawfully in Australia until such time as flights to India resumed and it was safe for her to return in the face of widespread COVID-19 in India. The Tribunal finds the applicant satisfies (d).

19. Schedule 3 criterion 3004(e) requires that the applicant has complied substantially to the conditions that attached to any entry permits she had held, any subsequent bridging visas and any substantive visas she had held, other than the condition where the breach was solely that the visa had ceased to be in effect. There is no evidence before the Tribunal that the applicant has failed to comply substantially with any conditions of the substantive or bridging visas that she has held. The Tribunal finds the applicant satisfies (e).

20. Schedule 3 criterion 3004(f)(i) applies to applicants to which paragraph (a) refers and requires the applicant would have been entitled to be granted a visa if the applicant had applied for the visa on the day when she last held a substantive or criminal justice visa. There is no evidence before the Tribunal that the applicant would not have been entitled to the Visitor visa if she had applied as the holder of a substantive visa. The Tribunal finds the applicant satisfies (f).

21. Schedule 3 criterion 3004(g) requires that the applicant intends to comply with any conditions subject to which the visa is granted. Based on the applicant’s previous history of compliance with substantive and bridging visas, and on the applicant’s evidence at the hearing, the Tribunal is satisfied that the applicant intends to comply with any conditions to which the visa may be subject. The Tribunal finds the applicant satisfies (g). Schedule 3 criterion 3004 (h) does not apply as it refers to circumstances where the last visa held by the applicant was a transitional (temporary) visa.

22. For the above reasons the tribunal is satisfied that the applicant satisfies Schedule 3 criteria 3004 (a), (c), (d), (e), (f) and (g), and that 3004(b) and (h) do not apply.

23. For the above reasons the Tribunal is satisfied that the visa applicant meets the requirements of Schedule 3 criteria 3004 for the purposes of cl.600.223(2).

    DECISION

24. 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.

    Mara Moustafine
    Member