Farhath (Migration)

[2022] AATA 2974

Farhath (Migration) [2022] AATA 2974 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Fareeda Farhath

REPRESENTATIVE:  Mr M Kashif Khan (MARN: 1101199)

CASE NUMBER:  2109792

HOME AFFAIRS REFERENCE(S):          BCC2021/3369

MEMBER:Anne Grant

DATE:18 August 2022

PLACE OF DECISION:  Melbourne

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 18 August 2022 at 11:04am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made after last substantive visa ceased – factor beyond applicant’s control and compelling reasons for granting visa – son’s difficulties in applying for visa – department’s system required expiry date of identity card which does not expire – told to use paper form – compliance with previous visas – physical health – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, 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 27 July 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 4 March 2021. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.223 because they did not satisfy clause 3004 of Schedule 3 to the Migration Regulations.

3. The visa applicant appeared before the Tribunal on 18 August 2022 by telephone  conference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Aman, the applicant’s son.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. The applicant was represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EIDENCE

6. 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).

7. The information and evidence before the Tribunal reflects that at the time of lodging the application for a visitor visa, the applicant did not hold a substantive visa.  Her last  visa was a subclass 600 visitor visa which had ceased on 1 March 2021.

8. 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

9. 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.  In the circumstances of this case, the ‘relevant day’ is the last day that the applicant held a substantive visa – 1 March 2021.

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

    Criterion 3003

11. 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

12. 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.  As the applicant has held a substantive visa which ceased after 1 September 1994, this criterion applies to her.

13. 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.

14. 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.

15. As noted above, the applicant’s last substantive visa (a visitor visa) ceased on 1 March 2021.

16. At hearing, the applicant’s son gave evidence that he encountered two different difficulties when lodging his mother’s visa application.  Firstly, he started the application in late February but found that the fees were higher than he thought they would be so he paused the application to check with the Department about that.  On 28 February 2021, he spoke to officers of the department and the fees were confirmed as correct due to this being a ‘subsequent grant’.  He then tried to lodge the application again but a new problem arose, because the uploading of his mother’s identification documents failed due to a glitch at the Department’s end.  He explained that when putting in the details of his mother’s Aardhar Card, the system would not allow him to continue without putting in an expiry date – but they do not expire.    He contacted the Department multiple times on 1 March 2021 and it was confirmed to him that this was a technical fault which was being addressed and that he should keep trying.  The applicant’s son did try to lodge the documents later on 1 March 2021 but the problem was not rectified before his mother’s visa ceased. By the time he could proceed, he was advised by the system that a paper application was necessary. 

17. The application was finally lodged on 4 March 2021 in paper form (as required because the previous visa had ceased.)  This is only three days after the cessation of the applicant’s visa.

18. The Tribunal accepts the information and evidence provided by the applicant and her son.  The applicant was suffering from a number of health problems during this period (and has provided medical statements supporting this evidence) including diabetes, hypertension, osteoarthritis, hepatic steatosis and renal cysts.  According to her doctor she has recently developed a frozen shoulder and depression and also underwent a recent hysterectomy and hernia surgery and remains very frail.  At hearing the applicant confirmed that she was suffering from a number of health conditions and that she usually relies on her son to make visa applications on her behalf. 

19. The applicant has held multiple visas in the past and has always complied with the conditions of those visas. Her last visa did not have a no further stay condition. 

20. A computer or system malfunction was outside the applicant’s control.  Her illnesses were also outside of her control and increased her reliance on her son to reapply for a visa on her behalf.  Considering the applicant’s excellent migration history and the evidence before it, the Tribunal is satisfied that had the technical glitch not occurred, the visa applicant would have applied for the visa within time. The Tribunal is satisfied that the visa applicant was not the holder of a substantive visa at the time of application due to factors beyond her control.

21. The circumstances of the COVID19 pandemic, the applicant’s illnesses and reliance on her family in Australia after the loss of her husband in 2020, and her excellent migration record are all circumstances which the tribunal considers are compelling reasons for the granting of the visa.  It is noted that the delegate conceded that there were compelling reasons for the grant of the visa.

22. The applicant has complied substantially with the conditions of all visas she has held and any subsequent bridging visa. 

23. If the application had been lodged in time, the Tribunal is satisfied that the visa application would have been entitled to be granted a visitor visa on the last day she held a substantive visa. 

24. The applicant has given evidence that (and the Tribunal accepts that) she would comply with visa conditions, including departing Australia at  the end of her visa as required.  She noted that she has a home and siblings in India and has every intention of returning there at the end of her visa as required.  The Tribunal accepts that the visa applicant would comply with any visa conditions.

25. The information before the Tribunal reflects 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, or further entry permit, while the holder remained in Australia.

26. After taking into account all of these factors, the Tribunal finds that the applicant satisfies criterion 3004.

    Criterion 3005

27. 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.

28. There is no suggestion in this case that the applicant has previously been granted a visa under these or earlier regulations.   Accordingly, the applicant satisfies criterion 3005.

    Conclusion on Schedule 3 criteria

29. For these reasons, the applicant satisfies all schedule 3 criteria which apply in her case for the purposes of cl 600.223.

30. 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

31. 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.

    Anne Grant
    Member