Don Albert (Migration)

[2023] AATA 1682

Don Albert (Migration) [2023] AATA 1682 (5 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Punchinina Don Albert

CASE NUMBER:  2210024

HOME AFFAIRS REFERENCE(S):          BCC2022/2006000

MEMBER:Melissa McAdam

DATE:5 June 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 05 June 2023 at 10:50am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – two further visas granted while in Australia – application made two days after last visa ceased – factors beyond applicant’s control – misremembered expiry date – physical health and medication – compliance with previous visas – security and economic conditions in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 20 June 2022 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 3 June 2022. 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).

4. The applicant last arrived in Australia on 10 March 2020 on a Visitor visa which expired on 10 June 2020. She was granted two further Visitor visas while in Australia, the last one being granted on 1 June 2021 and ceasing on 1 June 2022.

5. In her visa application the applicant wrote that she was seeking the visa for a further twelve months:

   Due to current situation in Sri Lanka applicant is unable to return and will have problems surviving as lack of supply of essential supplies. Also applicant lives alone and will have difficulty arranging day to day supply for daily livings.

6. On 6 June 2022 the delegate wrote to the applicant requesting the following further information:

   Factors outside their control preventing them from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa.

   Departmental records indicate that your Visitor (Tourist) (subclass 600) ceased on 1 June 2022. At time of your visa lodgement you did not hold a substantive visa so therefore you must respond in writing whether there were factors outside your control preventing you from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the Visitor visa.

7. On 11 June 2022 the applicant wrote to the Delegate stating the following:

   I, Don Albert Punchinona applied for visitor visa extension on 03/06/2022. For some reason, I have remembered the visa expiry date as 06/06/2022 and that’s why I have applied on 3/06/22 before the expiry date. This is purely a human error, I had no intention of disobeying my visa condition or breaching. Please apologise for me for making that mistake.

   I am from Sri Lanka and I live alone since my husband passed away four years ago. At the moment Sri Lanka going through an economical crisis which led to civil unrest.

   The economic crisis in Sri Lanka has led to shortage of essential items of cooking gas, shortage of fuel as well as shortage of essential items such as food and medicine. As a result of these shortages there are long queues in every part of the country for purchasing essential items and some people have spent 3-4 days in the queues to get their needs. Experts have suggested that near future, Sri Lanka will not have enough food supply to have three meals a day.

   Given the situation in Sri Lanka, I will not be able to survive on my own as I am suffering from high blood pressure and would not tolerate standing in queues spending hours to get my essential supplies. I am depending on blood pressure tablets for my high blood pressure and it would be very difficult for me to survive without medication.

   My son Lalith Kumarasiri Hadun Arachchilage is in a position to looking after me during my short stay in Australia. Please be kind enough to grant visitor visa for me to stay with my son here in Australia and I will return to Sri Lanka as soon as the current civil unrest situation settles down.

8. On 13 June 2022 the applicant’s son and his wife wrote to the Delegate stating the following:

   We, Hadun Arachchilage Lalith Kumarasiri & Mrs.Amali Mahesha Gunaweera wife and husband wish to state following details regarding the Visitor’s Visa submitted by Don Albert Punchinona. She is the mother of Hadun Arachchilage Lalith   Kumarasiri and the Mother-in-Law of Amali Mahesha Gunaweera.  We are inviting her to stay with us during the unstable time in Sri Lanka.

   We are Australian citizens. I Amali Mahesha Gunaweera attached to Cabrini residential care as a registered nurse and drawing an annual salary of $ 80000.00. I Hadun Arachchilage Lalith Kumarasiri working as a finance officer at Aust Facility Services, and I am getting annual income of $ 80000.00.

   We are inviting Mrs Don Albert Punchinona to stay with us bit longer due to current civil unrest in Sri Lanka. We have adequate funds to cover all the expenses during her short stay in Australia. I Lalith Hadun Arachchilage is the elder son of Punchinona, and it is my responsibility to look after her during her elderly age. Given the current situation in Sri Lanka, it is very uncertain that she would have all her daily essential requirement such as cooking gas, food, and medicines. Currently Sri Lanka going through a very difficult time and people are having difficulties finding their daily essentials. People are spending three to four days in queues to get their needs. Even if you have money, there are not enough supply for all parts of the country.

   My mom needs my help to look after her during this time. I will guarantee that she will return to Sri Lanka as soon as the country have enough supply of essentials such as food, medicine, and cooking gas.

9. The delegate was satisfied there were compelling reasons for the grant of the visa, however she was not satisfied that the reasons the applicant did not hold a substantive visa at the time she lodged her last Visitor visa application were beyond her control.  The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because she did not meet the requirements in Schedule 3 requirement 3004.

   Review application

10. The applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter-in-law, Ms Amali Gunaweera.  The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

11. The following is a summary of the information provided by the applicant at the hearing:

    a.She doesn’t understand why her visa application was refused.

    b.She will return to Sri Lanka but she is a little worried about travelling there on her own.  She is also worried because there is a shortage of medication in Sri Lanka.

    c.She knows some people who she trusts who will be travelling there in May or June or July so she will try to travel with them.

    d.She has a house in Sri Lanka but she lives alone. She was recently told her house was burgled so she is worried about this.  She has a son in Sri Lanka but he lives far away. She would like to stay at her home because it is near the hospital and she can go to the clinic in the afternoons.

    e.She has been on medication for her blood pressure for about 21 years. She is also taking medication for cholesterol.

12. The following is a summary of the information provided by the applicant’s daughter-in-law at the hearing:

    a.She helped the applicant make her visa application. She asked the applicant when her last Visitor visa was expiring and unfortunately the applicant got the dates mixed up and made a mistake and said it was 6 June 2022. The applicant has some memory difficulties, it was simply a human error.

    b.The applicant’s husband has passed away so she lives alone in Sri Lanka.  It is an isolated house near the lakes and it was recently burgled. 

    c.The applicant does want to go back to Sri Lanka, she does not want permanent residence in Australia.

    d.The applicant has become very forgetful and she has been referred for a medical assessment. There is not yet any diagnosis regarding her memory issues.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether cl 600.223 is met. Clause 600.223 states: 

    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.

14. In the present case, the applicant has not previously held a subclass 403 visa. She therefore must satisfy the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.

    Is criterion 3001 met?

15. 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 cl 3001(2), as set out in the attachment to this decision.

16. In the applicant’s matter the relevant day is the last day she held a substantive visa as per cl 3001(2)(c)(iii).  This date is 1 June 2022. 

17. The applicant applied for the visa on 3 June 2022.  As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Is criterion 3003 met?

18. 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 she satisfies criterion 3003.

    Is criterion 3004 met?

19. Criterion 3004 applies if the applicant ceased to hold a substantive or criminal justice visa after 1 September 1994, or entered Australia unlawfully after that date and has not been granted a substantive visa. Generally speaking 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, there are compelling reasons for granting the visa, and the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant. In addition, the Tribunal must be satisfied that: the applicant would have been entitled to be granted the visa on the day he or she last held a substantive or criminal justice visa, or would have been able to satisfy the specified visa criteria when he or she last entered Australia unlawfully; the applicant intends to comply with any conditions of the visa; and the last visa held (if it was a transitional (temporary) visa) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit while remaining in Australia.

20. The applicant’s last substantive visa ceased on 1 June 2022.  She was therefore not holding a substantive visa when she applied for a further Visitor visa on 3 June 2022.

21. The Tribunal notes this is a matter of only two days and that there were compelling reasons for the grant of the visa. 

22. However the applicant and her daughter-in-law have provided evidence that the delay in applying for the further visa was a result of their mistake, namely the applicant’s confusion about the expiration date of her visa.  There is some indication that the applicant’s memory has deteriorated as she has aged however there is no evidence she has been diagnosed with a condition where her ability to remember things is beyond her control.

23. The Tribunal has some sympathy for the applicant’s situation, particularly give the very short two day delay and the evidence that she has otherwise been fully compliant over many years with her visa conditions in Australia. However after carefully considering all the relevant circumstances the Tribunal is not satisfied that the applicant was not the holder of a substantive visa when she applied for a further visa due to factors beyond her control.

24. Accordingly, the applicant does not satisfy criterion 3004.

    Conclusion

25. Given the applicant does not satisfy criterion 3004 the Tribunal finds that the applicant does not satisfy cl 600.223.

    DECISION

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

    Melissa McAdam
    Member

    
    

    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.

    3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    3003If:

    (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.

    3004If 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.

    3005A 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.

    Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.