Chakrabortty (Migration)

[2023] AATA 1425

Chakrabortty (Migration) [2023] AATA 1425 (8 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Krishna Chakrabortty

CASE NUMBER:  2202672

HOME AFFAIRS REFERENCE(S):          BCC2021/914939

MEMBER:Rachel Da Costa

DATE:8 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2023 at 9:35am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant did not hold a substantive visa at the time of application – not a factor beyond the applicant’s control in the context of the present case – failed to satisfy criterion 3004 – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 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 17 February 2022 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 is a 69-year-old citizen of India. She last arrived in Australia on 27 January 2020 as the holder of a Visitor visa. That Visitor visa ceased on 27 January 2021. On 8 April 2021, she was granted a further Visitor visa which ceased on 1 January 2022.

3. The applicant applied for a further Visitor visa on 21 January 2022. On 4 February 2022, the Department wrote to the applicant noting that the applicant’s Visitor visa ceased on 1 January 2022 and requested further information on factors outside the applicant’s control that prevented her from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa. On 7 February 2022, the applicant’s son responded in writing on her behalf.

4. On 17 February 2022, the delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because she did not satisfy the Schedule 3 criterion 3004.

5. On 28 February 2022, the applicant applied for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.

6. On 25 April 2023, the applicant’s son informed the Tribunal that the applicant has left Australia and returned to India but that she still wished to proceed with her application for review. He indicated that the applicant did not have the technology to participate in the hearing by video and that she would participate by telephone. The Tribunal considered the information and decided that this was appropriate in the circumstances.

7. The applicant appeared before the Tribunal on 5 May 2023 to give evidence and present arguments by telephone from India. The Tribunal also received oral evidence from the applicant’s son, Mr Debayan Chakrabortty, who has been acting as her representative in the application for review. Mr Chakrabortty attended the hearing by telephone as he is located in Melbourne and the Tribunal member is in Sydney. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

9. 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.

10. 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.

11. Clause 600.223 provides:

    (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.

12. The delegate found that the applicant did not satisfy the requirements of criterion 3004.

13. Criterion 3004 provides

    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. 

14. The issue in this case is whether the applicant meets criterion 3004. Criteria 3003 and 3005 are not relevant to this review.

    Background

15. The applicant is an Indian citizen. In India, she has a daughter. In Australia, she has her son, daughter-in-law and their child. While in Australia, she stayed with her son and his family in their house. She came to Australia to visit them.

16. She confirmed to the Tribunal that she returned to India on 24 December 2022. This is reflected in movement records held by the Department.

    Does the applicant meet the requirements of cl 600.223?

17. The applicant gave evidence that she was in Australia at the time she applied for her Visitor visa on 21 January 2022 and agreed that her previous Visitor visa had ceased on 1 January 2022. Records of the Department of Home Affairs confirm this.

18. Therefore, the Tribunal finds that the applicant was in Australia at the time of application, and did not hold a substantive visa and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. On that basis, the applicant must satisfy Schedule 3 criteria 3001 and 3004.

    Does the applicant meet criterion 3001?

19. Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day. The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.

20. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 1 January 2022 and she lodged her application for a Visitor visa (which is the subject of this application for review) on 21 January 2022. Therefore, her application was lodged within 28 days of the relevant day and she meets criterion 3001.

21. She must also meet criterion 3004.

    Does the applicant meet criterion 3004?

22. As set out above, criterion 3004 includes a number of requirements. Criterion 3004(c) requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control.

23. In her Visitor visa application form 1419 lodged on 21 January 2022, the applicant states that “(1) in Covid situation, no regular flights available and it takes very long house to reach Kalkota from Melbourne (2) having knee problem. It is very difficult to travel for so long hours (3) in current Covid situation, going to India is very risky”.

24. In his written response to the Department’s request for further information dated 7 February 2022, the applicant’s son states that he apologises for the mistake that he forgot his mother’s visa expiry date. He states that he thought it expired at the end of January 2022 but it was 1 January 2022. He states that he received the notification email while he was on holiday with his family in Tasmania and he could not apply for the visa because he had limited access to the internet and his computer had all the details. He states that he applicant for the Bridging visa just after reaching Melbourne on 6 January and then applied for a tourist visa. He attaches e-tickets for the family’s travel to and from Tasmania on 27 December 2021 and returning on 6 January 2022. He goes on to address why there are compelling reasons for the grant of the visa.

25. In the Tribunal hearing, the applicant gave evidence that she did not know the details of her visa and when it expired but her son knew the details. She gave evidence that she arrived in 2020 and in 2021 she applied for another visa which was approved for 2022. When asked for the reason her Visitor visa expired before she applied for a new one, she responded that her son completely forgot to renew it until he got the message from the Department, and another reason is that her daughter in law needed surgery and that is another reason why her son forgot. The Tribunal explained to the applicant that it had to consider whether she didn’t hold a Visitor visa at the time she applied for her new one due to factors beyond her control, or in other words, whether there was something she could have done to prevent that situation from happening. The applicant responded that it was out of their control and her son was upset and under a lot of stress because his wife was sick. The Tribunal asked her whether there was anything else and she said there was not, and she had nothing to prevent the situation.

26. The Tribunal explained to the applicant that as the visa holder, it is very important that she takes responsibility to understand the conditions of her visa, including its expiry date, and makes sure that she complies with those conditions. The Tribunal reminded her that the visa is her visa and not her son’s visa. The applicant responded that her knowledge and education is limited.

27. The Tribunal put to the applicant that it might find she could have prevented the situation with her visa from happening by making sure she knew the expiry date of her visa and took steps to make the new application in plenty of time before her existing visa expired. The Tribunal explained to the applicant that it was fine to have someone helping her, like her son, but it was still her responsibility as the visa holder to be aware of the conditions of her visa. The Tribunal put to the applicant that it might find she could have taken note of the date her visa expired, with the help of her son, and recorded this in a diary and that she could have kept track of the time and made sure that she and her son applied for her visa in plenty of time before the existing one expired. The applicant responded that this could have been done, but it was her first time coming overseas, she has limited education, she is dependent on her son and she didn’t have any knowledge of this. She said it was a mistake, but out of her knowledge. If she had known, she would not have made the mistake.

28. In the hearing, the Tribunal reminded the applicant’s son of what he said in his letter to the Department dated 7 February 2022 about the situation with the applicant’s visa. He confirmed this was correct and that he forgot the expiry date. When he was in Tasmania he received the email that the visa had already expired. He said it was his fault that he had the date wrong.

29. The Tribunal put to him and his mother that it might find that what happened was not due to factors beyond their control. The applicant’s son agreed with this.  

    Was the applicant not the holder of a substantive visa when she applied for a Visitor visa because of factors beyond her control?

30. In considering whether there are reasons which constitute factors beyond the applicant's control, the Tribunal has had regard to the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, which involved a Subclass 457 visa and Sch. 3 criterion 3004. While the application in that case was dismissed by the Court, the judgement provides guidance on the interpretation of the test of factors beyond the control of a person.

31. Smith FM, referring to the judgement 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.

32. Smith FM goes on to refer to further discussion by Mansfield J making the point at [18] that:

    it is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a 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.

33. The Tribunal has considered all the evidence of the applicant and her son as set out above. In the Tribunal’s view, even taking into account the applicant’s claimed limited education, inexperience with travel and dependence on her son, it was not ‘beyond the control’ of the applicant to inform herself of the conditions of her stay in Australia, including the expiry date of her existing visa. The Tribunal also considers that it was not ‘beyond the control’ of the applicant to have diarised her visa expiry date, along with her son, and to have kept track of time and to have ensured that her application for a new Visitor visa was lodged before her existing Visitor visa expired. The Tribunal does not accept that the applicant taking no responsibility for her visa situation and relying completely on her son who admits he forgot the correct expiry date of the applicant’s visa, amounts to factors beyond the applicant’s control. The Tribunal acknowledges that the applicant’s circumstances are regrettable, but it considers that it was within her capacity to have avoided this situation with her visa from arising. 

34. For the reasons explained above, the Tribunal does not accept that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control.

35. Accordingly, the Tribunal finds that the applicant does not meet the requirement in criterion 3004(c). This being the case, it is not necessary for the Tribunal to consider and make findings about whether there are compelling reasons for granting of the visa under criterion 3004(d).

36. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of cl 600.223.

    DECISION

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

    Rachel Da Costa
    Member