Frantz (Migration)

[2022] AATA 3327

Frantz (Migration) [2022] AATA 3327 (3 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Mechell Frantz

CASE NUMBER:  2118770

HOME AFFAIRS REFERENCE(S):          BCC2021/2001454

MEMBER:Nicole Burns

DATE:3 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 03 August 2022 at 11:01am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant was not the holder of a substantive visa at the time of application – applicant doesn’t meet the requirements of Schedule 3, criterion 3004(c) – Tribunal is not satisfised reasons constitute factors beyond her control either individually or cumulatively–decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 362, 379

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3004

CASES
Liu v MIAC [2010] FMCA 60
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151

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 1 December 2021 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 19 October 2021. 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 delegate refused to grant the visa on the basis that cl 600.223 was not satisfied, because at the time the applicant applied for the visa she did not hold a substantive visa and did not satisfy criterion 3004 in Schedule 3 to the Regulations.

5. The applicant gave oral evidence to the Tribunal via video link on 2 August 2022 about the issues in her case.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements of cl.600.223 of the Regulations.

8. Departmental records (as confirmed at hearing) show the visa applicant was in Australia at the time of application, being 19 October 2021.  Therefore, she is required to satisfy cl 600.223(2) for the grant of the visa, which provides:

   (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)   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.

9. The evidence before the Tribunal is that the applicant ceased to hold her last substantive visa on 15 October 2021 following the expiry of her previous Subclass 600 visa. Accordingly, the Tribunal finds the applicant did not have a substantive visa at the time of her application and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations) visa in the Domestic Worker stream.

10. The applicant must therefore meet the requirements of criterion 3001 and 3004. Criterion 3003 and 3005 are not relevant to this review.
    
    

    Does the applicant meet criterion 3001?

11. 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 the last day when the applicant held a substantive visa.

12. As noted, the evidence before the Tribunal is that the application was lodged on 19 October 2021 and the last day the applicant held a substantive visa was 15 October 2021. The Tribunal is therefore satisfied her application was lodged within 28 days of the relevant day and she meets criterion 3001.

    Does the applicant meet criterion 3004?

13. Schedule 3004(a) requires that the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994. The Tribunal is satisfied that the applicant ceased to hold a substantive visa on 1 October 2020. Therefore criterion (b) does not apply.

14. With respect to the remaining provisions under criterion 3004, the Tribunal must be satisfied of all of the following, as discussed at hearing:

    ·the applicant is not the holder of a substantive visa because of factors beyond his or her control – criterion 3004(c);

    ·there are compelling reasons for granting the visa – criterion 3004(d);

    ·the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant – criterion 3004(e);

    ·the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa – criterion 3004(f);

    ·the applicant intends to comply with any conditions of the visa – criterion 3004(g).

15. Schedule 3 criterion 3004(c) requires that the applicant is not the holder of a substantive visa because of factors beyond her control.  In her application form the applicant stated she applied for the visa given COVID-19 related restrictions and confusion about the visa expiry date.

16. In an email to the Department dated 30 October 2021 the applicant said there were a few factors as to why her visa application was late including because she thought the visa expiry date was 26 October (2021); her internet was shut off on 30 September as she was moving from Sunbury to Cohuna and she had to wait for the new company to set it up at her new house; she was going through a divorce for over two years and her ex-husband had threatened to kill her; her father had died on 10 November the previous year; her mother had colon cancer; and her stepfather had kidney failure and they were looking for a donor.  The applicant added that her post traumatic stress disorder and anxiety were ‘going off at the moment’ and it was hard to remember everything, and she is not perfect.  She attached a letter from her GP[1] and treating psychologist[2] (copies of which were also provided to the Tribunal on review).  Whilst the delegate was satisfied these reasons constituted compelling reasons for the grant of the visa, they were not satisfied these constituted factors beyond the application’s control which prevented her from lodging the visa within time.   The delegate refused the visa application on 1 December 2021. 

    [1] Dated 17 July 2020

    [2] Dated 22 March 2020: states the applicant attended three sessions from 14 February to 20 March 2020 and has been diagnosed with Depression and Post Traumatic Stress Disorder (PTSD), in relation to her abusive marriage.

17. In an email dated 3 May 2022 to the Tribunal during the review stage the applicant states that she has many friends and people she loves and cares about in Australia; due to COVID-19 she was unable to travel home; she lost her father to cancer; her mother had colon cancer and her stepfather has stage 5 kidney failure; and she has been threatened by her ex-husband and was afraid for her life.  She states further that she wishes to stay and tour Australia and is a good citizen with no criminal history; she paid for her stay in Australia; rented two homes and bought two cars (with her partner); supported Australia during the pandemic by getting her shots and obeying the law (and attached police clearance certificates); has bought ANZAC pins and supports Veterans; and always thinks of the community first. 

18. At the Tribunal hearing the applicant said she was living in Arkansas, in the United States (US) before she first came to Australia in August 2019 to visit for a month or so, and then returned to the US as she had a court case in relation to her divorce.  She returned to Australia in October that year, and has stayed, including during the time when COVID-19 hit and related lockdowns and restrictions, including flight cancellations.  She met her current partner, Mark, who is an Australian citizen in Australia and they currently live together in Cohuna, Victoria.  He receives a pension, and the applicant receives an income of around US5,000 per month from a stair installation business in America that she and her former husband co-own.   She said she has not worked in Australia and would not if the visa is granted with a no work condition.

19. The applicant said she has looked into applying for a permanent visa – that is a partner visa based on her relationship with Mark – in order to save money and time having to apply for temporary visas to visit Australia.  She hopes to buy a house in Arkansas, near her mother and stepfather’s residence, and then spend most summers in Australia.  She applied for the visitor visa – the subject of this review – to undertake more travel here and spend more time with Mark, who she helps care for as although he is only 56, he has a degenerative bone disease.

20. The Tribunal discussed with the applicant the reasons why she did not apply for the visitor visa before the expiry of her previous visitor visa, and generally her circumstances at the time.   She said she got the date of expiry for her previous visitor visa wrong, thinking she had a few more days than she actually did.  She claimed to have been confused somewhat because there had been delays in being granted her second visitor visa (and therefore in terms of when it expired).  Also, she was moving to a new house at the time, her father had died, her mother and stepfather in America had serious health issues, and she had been going through a difficult divorce.  The applicant said she had always been on time in the past, and thought she had the right date for this visa, but given everything that was going on, she did not check her immigration account, and miscalculated.

21. The Tribunal has considered the applicant’s reasons for not being the holder of a substantive visa at the time of the application for the present visa, and whether this was because of factors beyond her control.  The Tribunal accepts the applicant’s evidence that she was moving to a new house at the time, misunderstood the expiry date of her previous visa, and may have been distracted to some extent by other circumstances such as her divorce, death of her father the year before, and her mother and stepfather being unwell.  It accepts these circumstances resulted in some mental health issues, and that she had seen a psychologist a few times in early 2020 to help manage symptoms.  At hearing the applicant said she currently takes anti-anxiety medication, which the Tribunal accepts.  However, for the reasons that follow the Tribunal is not satisfised these constitute factors beyond her control either individually or cumulatively. 

22. The Tribunal notes that it was the applicant’s responsibility to comply with visa requirements and to ensure that visa applications were made as required by law. The applicant had been granted a number of previous visas and therefore would have had some experience in dealing with visa applications. The Tribunal notes further that it is clear from the Department website that a visitor visa must be applied for while an applicant has a substantive visa.[3]  Considering these factors, and in light of judgments in Su v MIAC [2007] FMCA 318 and Liu v MIAC [2010] FMCA 60 the Tribunal is not satisfied that the applicant did not apply for the visitor visa during the term of her substantive visa because of factors beyond her control.

    [3] Visitor visa (subclass 600) Tourist stream (apply in Australia) (homeaffairs.gov.au)

23. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 involved Schedule 3 criterion 3004 in the context of a Subclass 457 visa. While the application in that case was dismissed by the Court, the judgment provides guidance on the interpretation of the test of factors beyond the control of a person. Smith FM, referring to the judgment 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.

24. In the case of Su[4], the Court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that it was difficult to regard as beyond control an event caused by forgetfulness or misunderstanding on the part of the 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.

    [4] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

25. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, these being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa.

26. In the applicant’s case it appears the main reason she did not apply for the visa before the expiry of her last substantive visa was simply because she had the dates wrong.  At hearing she said she had confused the date of expiry but also did not check her immigration account, until it was too late.  This occurred in the context of her moving to a new house and generally being impacted by the death of her father (a year prior), her stepfather and mother’s illnesses, and her own divorce, which had been ongoing.  The Tribunal is not satisfied when taking these circumstances into account that it was not within the applicant’s capacity to ‘appreciate what was needed and to perform an action which would have avoided the event occurring’, or that in a practical or realistic sense, in the unique circumstances of this case, that she was able to do so,[5] as she had done in the past when applying for previous visas.

    [5] Su v MIAC [2007] FMCA 318

27. Accordingly, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time of application due to factors beyond her control. The Tribunal is not satisfied therefore that the applicant meets the requirements of Schedule 3, criterion 3004(c).  She therefore does not satisfy cl 600.223(2).

    DECISION

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

    Nicole Burns
    Member