Chanthabounheuang (Migration)

[2022] AATA 1824

Chanthabounheuang  (Migration) [2022] AATA 1824 (23 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Khampieng Chanthabounheuang

CASE NUMBER:  2112188

HOME AFFAIRS REFERENCE(S):          BCC2021/1588403

MEMBER:Wendy Banfield

DATE:23 May 2022

PLACE OF DECISION:  Canberra

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 23 May 2022 at 4:10pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – COVID-19 border closures – medical treatment – 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

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 7 September 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 13 August 2021. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.223 because Schedule 3 criteria 3004 had not been satisfied

3. The applicant appeared before the Tribunal on 20 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter and son-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Lao and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Relevantly to this matter cl 600.223 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, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

6. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.

   Does the applicant satisfy the relevant Schedule 3 criteria?

   Criterion 3001

7. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

8. The applicant last held a substantive FA600 visa which ceased on 2/08/2021. The applicant lodged this application for a FA600 Visitor- Tourist Stream visa on 13/08/2021.

9. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

   Criterion 3003

10. Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa and, on 31 August 1994, was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

    Criterion 3004

11. Criterion 3004 applies to an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not subsequently been granted a substantive visa.

12. It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa and that the applicant has complied substantially with the conditions applicable to the last of any entry permits, substantive visas and any subsequent bridging visa held by the applicant.

13. In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it 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; that the applicant intends to comply with any conditions of the visa; and 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 further entry permit, while the holder remained in Australia.

14. The applicant last held a substantive FA600 visa which ceased on 02/08/2021 and applied for the visa which is the subject of this review on 13/08/2021. Submissions were made to the Tribunal at the hearing regarding the reasons the visa applicant was not the holder of a substantive visa at the time of application. It was also claimed there are compelling reasons for the grant of the visa.

15. The applicant submitted she was in Australia visiting her daughter, son-in-law and grandchildren and was unable to depart due to COVID-19 border closures. The Tribunal notes the immigration delegate accepted there were compelling reasons for the grant of the visa at the time of application. Regarding the reasons the applicant is not the holder of a substantive visa and whether there were factors beyond the applicant’s control, the applicant’s claims were essentially the same as those made at the time of application. It was submitted that at the relevant time, the applicant’s family members were subjected to lockdown and were required to work from home and home school young children. The applicant advised the children were also ill at the time. The applicant provided evidence to the Department in support of her claims.

16. At the hearing the applicant’s son-in-law made a brief statement advising he had prepared the applicant’s visa application but attempted to submit it online past the time due. As a result, he was required to complete a paper application. According to the applicant’s daughter, her mother has no English, and her own English is not fluent, therefore the applicant was relying on her son-in-law. The applicant’s daughter advised her mother has visited Australia in the past and has complied with visa conditions. She intends to comply in future.

17. Regarding compelling reasons for the grant of the visa, the applicant stated she has an eye appointment to correct an issue with her vision. The applicant advised she plans to return to her home country after that. She would also like to be able to visit her extended family members in future as she had done in the past.

18. The Tribunal assessed the evidence in this case and notes it is the applicant’s responsibility to ensure she continues to hold a valid visa to remain in Australia. However, having spoken to the parties at the hearing, the Tribunal accepts the circumstances during COVID-19 lockdowns were exceptional and people were dealing with difficult situations, particularly regarding the health and wellbeing of older people who were unable to return to their home countries. The Tribunal found the applicant’s evidence in this case to be consistent and credible and is persuaded there were factors beyond her control that led to her being without a substantive visa, and there are compelling reasons for granting the visa.

19. There is no evidence to indicate the applicant has failed to comply substantially with the conditions of the last of any entry permits and substantive visas (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit, or solely because the visa ceased to be in effect), and any subsequent bridging visa.

20. The Tribunal is satisfied the applicant would have been entitled to be granted a Visitor (Class FA) visa on the day she last held a substantive visa, and the applicant intends to comply with visa conditions. There is no evidence the last visa held by the applicant was a transitional (temporary) visa that was 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.

21. For the above reasons, the applicant satisfies criterion 3004.

    Criterion 3005

22. Criterion 3005 requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or regs 35AA, 42(1A) or 42(1C) of the Migration (1989) Regulations.

23. There is no evidence before the Tribunal to indicate a visa has previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out above. Accordingly, the applicant satisfies criterion 3005.

24. For these reasons, the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005 for the purposes of cl 600.223.

25. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 600 visa.

    DECISION

26. 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.

27. Wendy Banfield
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without 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 the conditions that apply or applied to:

    (i)       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

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted 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.

    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.

    3005     

    A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)this Schedule; or

    (b)Schedule 6 of the Migration (1993) Regulations; or

    (c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.