Daljeet Kaur (Migration)

[2022] AATA 777

Daljeet Kaur (Migration) [2022] AATA 777 (14 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Daljeet Kaur

REPRESENTATIVE:  Mr Achint Kishore (MARN: 1468224)

CASE NUMBER:  2018407

HOME AFFAIRS REFERENCE(S):          BCC2020/1747631

MEMBER:Luke Hardy

DATE:14 March 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:

· Cl 600.223 of Schedule 2 of the Regulations

Statement made on 14 March 2022 at 12:09pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at time of application – substantive visa expired two days – departure flight bookings cancelled by the airline – COVID-19 pandemic travel restrictions – evidence of earlier intended departure – circumstances out of the applicant’s control – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3, Criterion 3001

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 9 December 2020 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 is a national of India. She last arrived in Australia on 8 March 2020 on a Visitor visa that expired on 8 June 2020. She then became an unlawful non-citizen. She applied for an extension of her visa, but it was not received by the Department until 15 June 2020.

3. On 9 November 2020, the delegate sent a letter via email to the applicant inviting her to provide comment in relation to the information to the effect that she did not hold a substantive visa within 28 days of lodging her application for a Tourist Stream (subclass 600) visa. The applicant was informed that there is no provision to grant a Tourist Stream (subclass 600) visa to persons who apply for such visas more than 28 days after their last substantive visa ceased. The applicant replied on 13 November in a statutory declaration in which she described having made flight bookings for a timely return to India only to see these cancelled by the airlines more or less at the last minute due to Covid-19 pandemic travel restrictions, which involved cancelled flights, the reducing of passenger manifests to maintain social distance during flights and various other obstacles. The applicant claimed that by the time this happened she had only a few days left on her visa, the last three of them being the long weekend of the Queen’s birthday in June 2020. She was evidently able to engage her migration agent on 9 June 2020. She signed her application for a visa extension on 10 June 2020, asking for more time in Australia just to allow her to make fresh arrangements to travel home to India. She did not seem to be aware of the availability at that time of the Temporary Activity (subclass 408) Australian Government endorsed events (COVID-19 Pandemic event) visa, or “Covid-19 visa.”

4. The delegate refused the visa on9 December 2020, on the basis of finding that she had not been prevented from lodging a visa application before her visa expired by circumstances outside her control.

5. The applicant then sought review by this Tribunal and the matter was constituted to me. I find the review application to be valid. I have determined that this matter can be resolved on the papers.

6. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. Clause 600.223 provides:

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

   (b) 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:

   (i) a Subclass 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.

10. Schedule 3 criteria 3001 and 3004 state that:

    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 ...

    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.

11. The applicant’s last visa ceased on 8 June 2020. The department received her application for the visa on 15 October 2020.

12. I find 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 or, if not, 3004.

13. The applicant has addressed the main issues in this case in submissions that I have already summarised above. She has also provided credible evidence of bookings for timely flights from Australia to India. The 26 March 2020 date of these flights argues that she intended to return to India after only about three weeks in Australia. That position is supported by a letter from her employer granting her 25 days’ leave in March 2020. Given the times, with Australia going into lockdown by mid-March 2020, I accept that the applicant’s flight out of Australia was cancelled and accept that this was due to circumstances beyond her control.

14. The applicant had until 8 June 2020 to find an alternative means of departing Australia, or to apply for a “Covid-19 visa” or to lodge an application for a further Visitor visa. The delegate found that she had plenty of notice, given her inability to fly out of Australia on 26 March 2020, to make timely arrangements to secure any one of these. It appears on the evidence that the applicant pursued the flights option, perhaps given the need to get back to work in India, and did so unsuccessfully, due to circumstances outside of her control. It appears that events left her little time to lodge a Visitor visa application before the expiry of the visa she (now) previously held. She says that this was in large part due to discovering late in the process that Monday 8 June 2020 was a public holiday, and not just any Monday. The delegate was of the view that this oversight was something within the applicant’s control to avoid, and in less disrupted times I would probably hasten to agree. However, Australia was in lockdown and flights out were being cancelled and/or re-assigned, sometimes at great cost to people genuinely intending to fly out. On all the information before me, I am prepared to accept that the applicant was affected by cumulative circumstances that were largely outside of her control.

15. The applicant therefore meets criterion 3004(a), and (c) to (f). Criterion 3004(b) does not apply.

16. The applicant has indicated to my satisfaction that she intends to return to India as soon as this matter is resolved and within the time limitations on her visa. I find that the applicant meets criterion 3004(g).

17. I do not regard criterion 3004(h) as applicable in this case.

18. Hence, on the evidence before me, I find that the applicant satisfies Schedule 3 criteria 3004(a), (c), (d), (e), (f) and (g), and that 3004(b) and (h) do not apply.

    DECISION

19. 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 of the Regulations

    Luke Hardy
    Member