Bridge (Migration)

[2022] AATA 1816

Bridge (Migration) [2022] AATA 1816 (26 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Eileen Bridge

CASE NUMBER:  2110722

HOME AFFAIRS REFERENCE(S):          BCC2021/1387641

MEMBER:Jane Marquard

DATE:26 May 2022

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:

·Public Interest Criterion 3004 for the purposes of cl 600.223 (2) of Schedule 2 to the Regulations.

Statement made on 26 May 2022 at 11:34am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – family mental health conditions – Immi Account error messages – expected COVID-19 pandemic extension period – factors beyond the applicant’s control – compelling reasons – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004

CASES

Babicci v MIMIA [2005] FCAFC 77
Liu v MIAC [2010] FMCA 60
MZYPZ v MIAC [2012] FCA 478
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318        

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 10 August 2021 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 visa applicant applied for the visa on 6 July 2021. 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 criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which requires the visa applicant to satisfy the Minister that she meets Schedule 3 criteria. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because at the time she applied for the visa she did not hold a relevant substantive visa and did not satisfy criterion 3004 in Schedule 3 to the Regulations.

4. The visa applicant appeared before the Tribunal on 24 May 2022 to give evidence and present arguments in relation to issues arising under the review. The applicant’s daughter, Katie Bridge, also attended the hearing and the applicant confirmed that she would like Katie to speak on her behalf as she was nervous. The hearing was held by telephone due to restrictions imposed by the COVID-19 pandemic. The applicant and Katie confirmed that they could hear well. The Tribunal is satisfied that the hearing provided a fair opportunity to be heard.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.600.223.  That clause provides (in paraphrase):

   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.

   Was the applicant in Australia at the time of application?

7. The Tribunal is satisfied that the applicant was in Australia at the time of application, being 6 July 2021. This is not an issue in dispute.

   Did the applicant hold a substantive visa at the time of application?

8. The Tribunal is satisfied that the applicant did not hold a substantive visa at the time of application. As confirmed by the applicant at the Tribunal hearing and Departmental records, the last substantive visa held by her was a Visitor visa Subclass 600 which expired on 26 June 2021.

   Findings on Clause 600.223(1)

9. As the applicant was in Australia and did not hold a substantive visa at the time of application, cl.600.223(1) is not applicable.

   Did she hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream?

10. The last substantive visa was not one of these visas as it was a visitor visa. Therefore cl. 600.223(2)(a) is not applicable. She must satisfy cl.600.223(b).

    Does the applicant meet cl.600.223(b) in that she satisfies Schedule 3 criteria?

11. The issue is whether the applicant satisfies cl.600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

12. In regard to Schedule 3 criteria 3004, the Tribunal must be satisfied of all of the following:

    ·the applicant is not the holder of a substantive visa because of factors beyond  his or her control – criterion 3004(c);

    ·there are compelling reasons for granting the visa – criterion 3004(d);

    ·the applicant has complied substantially with the conditions applicable to the  last of any substantive visas and any subsequent bridging visa held by the applicant – criterion 3004(e);

    ·the applicant would have been able to be granted the visa if the applicant had  applied on the day he or she last held a substantive or criminal justice visa – criterion 3004(f);

    ·the applicant intends to comply with any conditions of the visa – criterion             3004(g); and

    ·the last visa or entry permit held (if any) 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 – criterion 3004(h).

    Is the applicant not the holder of a substantive visa because of factors beyond her control?

13. The Tribunal has considered the visa applicant’s reasons for not being the holder of a substantive visa at the time of the application for the present visa and whether this was because of factors beyond her control.

14. The applicant told the Department on 2 August 2021 that she had incorrectly read the expiry date of her visa as 25 November 2021, not realising it expired until one week after it expired. She said that she had been granted entry on compassionate grounds to support her daughter who has three children under the age of 3 and suffers severe mental health conditions.

15. The applicant’s daughter made written submissions to the Tribunal on 15 May 2022 as follows:

    ·Her mother had authorised her to talk on her behalf as she gets nervous, is 72 years old and is not confident in legal matters.

    ·She would ensure that her mother complied with all future visa conditions and terms.

    ·On 24 November 2020 her mother was granted an exemption to travel to Australia on a Visitor 600 visa on the basis of compassionate and compelling grounds. Her visa was valid for 6 months.

    ·The applicant arrived in Australia on 26 December 2020 and completed 14 nights in hotel quarantine before staying with her daughter, Katie, in the Central Coast.

    ·The applicant’s visa expired on 26 June 2021. Katie was not assisting her with visa renewal at this time.

    ·On 29 June 2021 the applicant told Katie that she had received an email that her visa had ceased and had not been renewed. She said that she had been trying to submit an application for a new visa online since May 2021 via her ‘Immi Account’ but the system would not allow her to submit the application and gave her an error message. As soon as Katie heard this, she telephoned the Department. The lady she spoke to said that this should not be a problem as they had a 28-day buffer to submit the application from the date of expiry. She said that she has since been informed that she was given incorrect information. The lady they spoke to said that she would arrange a Bridging visa immediately and they should submit a new application for a tourist visa.

    ·As the expiry date had passed, they were unable to submit an application online as the portal would not allow it. The officer from the Department had told them to send the application by registered post. They did this and sent the application on 5 July 2021. (A receipt for the Registered Post application was submitted to the Tribunal).

    ·On 2 August 2021 the applicant was contacted by the Department with a request for information. She told the Department that she needed to remain in Australia to support Katie who has mental health issues. This was true, but the primary reason was to remain in Australia longer to visit lifelong friends and spend time with her daughter and three grandchildren.

    ·She is hoping to obtain a tourist 600 visa for 12 months to remain a little longer in Australia to travel to NSW and Queensland in a campervan with a friend. She is an active member of the over-55s centre in Terrigal participating in a number of activities. She is able to financially support herself as she has rented out her house, has savings and has no mortgage.

    ·She could depart Australia and apply for a new visa which she was unable to do previously due to the COVID-19 pandemic.

16. At the Tribunal hearing Katie said that she had left the visa applications to her mother, and knows now that she should have been more involved. She said that her mother was confused as to when her visa expired as her previous visas had been for 12 months, and initially she had thought this was the case with this visa as well. However, in May she realised the visa was expiring soon and so filled in the application form online. She told Katie afterwards that she did not complete the process as she got error messages when she tried to apply. She did not ask Katie for assistance as she did not realise the importance and thought she had time. When Katie found out what had happened, she called the Department who told her that they had a 28-day buffer to apply. Katie had not kept in touch with her mother’s dates, which she had done previously. She was told that they had 28 days to apply, so they thought it ‘would be fine’, and they sent the application by registered post. Katie also went online and found that there was a problem with the website. The officer on the phone said that they would give her a bridging visa in the meantime so they thought they had acted correctly.

17. The Tribunal put to Katie that the applicant told the Department on 2 August 2021 that she had incorrectly read the expiry date of her visa as 25 November 2021, not realising it expired until one week after it expired, which does not suggest she was trying to apply in May 2021. Katie responded that her mother had been granted entry on compassionate grounds to support her daughter who has three children under the age of 3 and suffers severe mental health conditions. Initially she thought that the expiry date was November but she did go ahead and apply in May, as at that stage she realised that her expiry date was coming up. However a friend of hers had told her that there was an automatic 6 month extension due to the COVID-19 pandemic. Katie said that with hindsight she wished she had helped her.

18. The Tribunal notes that the applicant had been granted a number of previous visitor visas, arriving on 18 March 2003, 16 January 2006, 31 January 2012, 13 July 2015, 27 November 2016, 22 July 2017, 7 October 2018 and 21 November 2019. As discussed with her at the Tribunal hearing she would have had some experience in dealing with visa applications. The Tribunal notes further that it is clear from the Department website that a visitor visa must be applied for while an applicant has a substantive visa.[1] 

    [1] Visitor visa (subclass 600) Tourist stream (apply in Australia) (homeaffairs.gov.au)

19. Notwithstanding that she had experience with migration matters, the Tribunal accepts the applicant’s evidence that when she tried to fill in the visa form in May 2021, she received error messages, although there is no corroborative evidence of this. The applicant is a credible witness, as is her daughter and they have always complied with the law. The applicant has entered and exited Australia on numerous occasions without breaching any visa conditions. It is evident that they tried to sort out the visa situation within days of becoming aware of the expiry. The Tribunal therefore gives the applicant’s evidence the benefit of the doubt. The Tribunal also accepts her evidence that on this occasion the applicant believed that as the borders were closed there would be six month extensions. The Tribunal accepts Katie’s evidence that her mother is getting older and more forgetful and that she had been persuaded by her friends.

20. On a fine balance, the Tribunal is satisfied that the applicant did not apply for the visitor visa during the term of her substantive visa because of factors beyond her control, for the following reasons, and in light of judgments in Su v MIAC [2007] FMCA 318 and Liu v MIAC [2010] FMCA 60.

21. The Department’s Policy Guidance (PAM 3) provides a guide for Departmental officers in dealing with policy objectives and the interpretation of Schedule 3 criteria. It is not binding on decision makers but is a helpful guide in considering relevant issues. In relation to Schedule 3-3004 it notes that in relation to 3004(c) ‘factors beyond the applicant’s control’:

    Claims of incorrect departmental advice

    If claims of incorrect advice by the department are made, the decision maker should attempt to verify with the departmental office, or officer, what advice was given and should only accept the claims if they are judged as being credible.

    In some cases it will not be possible to verify what advice was given or even if the advice was given as claimed. Careful judgment will need to be exercised in such cases.

    In some circumstances it may be appropriate to give the applicant the benefit of the doubt, provided the claims appear reasonable and credible and are not inconsistent with the results of inquiries with the office, or officer, concerned. If, however, an applicant claims to have been given advice and the office, or officer, who was the source of the advice is confident that the advice was not given, or would not likely give such advice in the claimed situation, it may be appropriate not to give the applicant the benefit of the doubt.

22. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 involved Schedule 3 criterion 3004 in the context of a Subclass 457 visa. While the application in that case was dismissed by the Court, the judgment provides guidance on the interpretation of the test of factors beyond the control of a person. Smith FM, referring to the judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17] that two useful points emerge from that case:

    The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense "subjective", rather than being directed at deciding what would have been beyond the control of an abstract or "reasonable" person. A second point, is that what is "beyond control" should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.

23. In the case of Su[2], the court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that It was difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of the person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring. The Tribunal is satisfied that on this occasion, the applicant’s ability to ‘do something to prevent the relevant event occurring’ was impacted by her age, and that when there were error messages on the website, she felt unable to do anything about it, and also did not feel there was an urgency, having heard incorrectly from friends that there was an automatic extension.

    [2] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

24. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. The test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

25. In this case, in contrast to the facts in the case of Su[3] and Liu[4] there was no forgetfulness on the part of the applicant, instead there was no time to arrange the visa once she was unable to fill in the online form. The Tribunal is satisfied that, considering her particular circumstances (her age and the impact of incorrect friends’ advice to her) and in particular the short time frame, it was not within her capacity to ‘appreciate what was needed and to perform an action which would have avoided the event occurring’, or that in a practical or realistic sense she was able to do so.[5]

    [3] Su v MIAC [2007] FMCA 318

    [4] Liu v MIAC [2010] FMCA 60

    [5] Su v MIAC [2007] FMCA 318

26. The Tribunal is satisfied therefore that the applicant was not the holder of a substantive visa at the time of application due to factors beyond her control.

27. The Tribunal is satisfied therefore that the applicant meets the requirements of criterion 3004(c).

    Are there compelling reasons for granting the visa?

28. The expression “compelling reasons” is not defined for the purpose of criterion 3004. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. In MZYPZ v MIAC [2012] FCA 478 at [10] – [12] Bromberg J summarised the principles saying that “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v MIMIA [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v MIMIA [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ). In MZYPZ Bromberg J noted that “[u]ltimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred”, at [12].

29. The applicant accepts that there are compelling reasons for granting the visa. Katie, the applicant’s daughter is having a hysterectomy on 16 June 2022, has had some mental health issues, and she has three young children. Her husband works full-time. The applicant will be able to help Katie during her recovery. The Tribunal notes that the applicant has visited on numerous occasions, is ‘part of the family’ and community and that a visa refusal may have a negative impact on her ability to visit her Australian family in the future.

1. In these circumstances, the Tribunal is satisfied that it is compelled to exercise the discretion inferred (MZYPZ[6]) and that the circumstances are sufficiently powerful to lead the Tribunal to make a positive finding in favour (Babicci[7]) of granting the visa.

   Has the applicant complied substantially with the conditions applicable to the last of any substantive visa and any applicable bridging visa?

   [6] MZYPZ v MIAC [2012] FCA 478

   [7] Babicci v MIMIA [2005] FCAFC 77

2. The Tribunal is satisfied that, in the absence of any evidence to the contrary, the applicant has complied substantially with the conditions applicable to her last substantive visa. The Tribunal is satisfied that but for the global pandemic and the uncertainty surrounding travel, migration and border closures, the applicant had always intended to depart Australia to comply with the conditions imposed on her visa.

3. The Tribunal finds that the applicant meets the requirements of 3004(e).

   Would the applicant have been able to be granted the visa if the applicant had applied 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?

4. The Tribunal accepts that on the day she last held a substantive visa she would have satisfied the criteria for the visa and it was only the factors beyond her control which prevented grant of this visa.

5. The Tribunal finds that the applicant meets the requirements of 3004 (f).

   Does the applicant intend to comply with any conditions of the visa?

6. The Tribunal is satisfied that the applicant intends to comply with conditions of her visa. In reaching this conclusion the Tribunal has given significant weight to the fact that the applicant has complied with numerous visa conditions previously. She has departed the country when required to do so. She is an older woman who has no intention to work or study.  The Tribunal notes that the applicant has two other children in the UK who she returns to when she is not visiting her daughter in Australia. Furthermore, Katie indicated they may apply for a parent visa in the future and the applicant is aware of the importance therefore of complying with visa conditions.

7. The Tribunal is satisfied therefore that the applicant meets 3004(g).

   Was the last visa or entry permit held (if any) 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?

8. The Tribunal is satisfied that the applicant’s last visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, of a further entry permit, while the holder remained in Australia.

9. The Tribunal is satisfied therefore that the applicant meets 3004(h).

   Conclusion

10. For the reasons the Tribunal has given above, the Tribunal is satisfied that the applicant meets the requirements of criterion 3004. 

11. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.600.223.

    DECISION     

12. 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:

    ·Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

    Jane Marquard
    Member