Gomez Calvo (Migration)

[2022] AATA 2407

Gomez Calvo (Migration) [2022] AATA 2407 (14 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Linda Margarita Gomez Calvo

CASE NUMBER:  2109192

HOME AFFAIRS REFERENCE(S):          BCC2021/4370

MEMBER:Naomi Schmitz

DATE:14 July 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 14 July 2022 at 2:18pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made within 28 days of expiry of last substantive visa – factors beyond applicant’s control and compelling reasons for granting visa – partner’s essential work deployment and mandatory COVID quarantine in remote location with no WIFI – unable to lodge application – international travel restrictions – credible evidence – decision under review remitted

LEGISLATION      
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3004(c), (d)

CASES

Liu v MIAC [2010] FMCA 60

Secretary, Department of Social Security v Secara (1998) 89 FCR 151

Su v MIAC [2007] FMCA 318

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 29 June 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 19 March 2021.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because the delegate was not satisfied that the applicant met the requirements of Schedule 3004. Relevantly in this case, the delegate was not satisfied that the visa applicant satisfied criteria 3004(c), that the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control.

4. On 19 July 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 16 May 2022 the Tribunal invited the applicant to appear at a Tribunal hearing commencing at 10:30am (VIC time) or 8:30am (WA time) on 8 June 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

6. On 1 June 2022, the applicant’s de facto partner returned a signed response to hearing invitation. No other information or materials were submitted in support of the application for 0review.

7. The applicant appeared before the Tribunal on 8 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicant was represented in relation to the review by her de facto partner.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The requirements of cl.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.

   The requirements of Schedule 3004 apply

   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; and

   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.

   Is criterion 3004 met?

9. Criterion 3004 applies to applicants 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 have not subsequently been granted a substantive visa.

10. 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 that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant.

11. In addition, the Tribunal must be satisfied that: the applicant would have satisfied the criteria, or would have been entitled to be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa; 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.

    Assessment of the evidence in relation to criterion 3004

12. Based on the information available to the Tribunal, the Tribunal is satisfied that the applicant was in Australia at the time of application and did not hold a substantive visa. Therefore, the requirements of cl.600.223(2) apply to the applicant. The last substantive visa the applicant held was not a subclass 403 visa. Therefore, the applicant meets the requirements of cl.600.223(2)(a). The applicant lodged the application for the visa within 28 days after the expiry of her last substantive visa and therefore satisfies criterion 3001. Criterion 3003 does not apply. It is for this reason that the application for the visa made by the applicant engages criterion 3004.

13. In the delegate’s decision record dated 29 June 2021, the delegate found that the applicant did not meet subclause 3004(c), which requires that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control.

14. The applicant gave evidence that she last held a substantive visa, namely a Visitor (Subclass 600) visa which ceased on 12 March 2021. The applicant gave evidence that her de facto partner lodged her visa application which is the subject of this review on 19 March 2021. The applicant’s partner gave evidence of the same. Therefore, the applicant meets subclause 3004(a). The requirements of subclause 3004(b) are an alternative to subclause 3004(a) and therefore do not apply.

15. In the delegate’s decision record dated 29 June 2021, the delegate found that the applicant did not meet subclause 3004(c), which requires that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control.

16. The Tribunal Member asked the applicant if she had ever used a representative to assist with the applicant’s migration matters and whether the applicant had an IMMI, Visa Entitlement Verification Online (VEVO) account or registered email account with the immigration department. The applicant gave evidence that she has an IMMI account which she used to make visa applications including previous visa applications and received visa notification grant notices. The applicant gave evidence that in the past she always ensured that she was aware of her visa expiry date and maintained communication with the department. The applicant confirmed that through the assistance of her de facto partner, that she previously applied for and was granted a total of four Visitor Subclass 600 visas, including on 14 May 2018, 6 August 2019, 7 July 2020 and on 11 November 2020, the last of which was valid until 12 March 2021.

17. The Tribunal Member asked the applicant how not holding a substantive visa at the time of application for the visa was because of factors beyond the applicant’s control.

18. The applicant stated on 10 March 2021 that her de facto partner was deployed from Western Australia to Darwin for work, taking their laptop computer which contained critical documents to lodge her visa application. She confirmed this was their only electronic device to lodge the visa application. When he attempted to lodge her visa application from his pre-isolation camp, that there was no WIFI network and consequently he was unable to lodge her visa application.

19. The Tribunal Member asked the visa applicant why she did not lodge her visa application before this time. The applicant referred to her de facto partner’s employment and unpredictable work schedule, often in remote locations in Australia and offshore in the Timor sea, which was further complicated by the strict COVID-19 quarantine directions by the State and Commonwealth governments. Leading up to the time of application he was away for extensive periods of time and she was unable lodge the application.

20. The applicant gave evidence that although she had a large portion of the documents to lodge her visa, she required certain financial information from her de facto partner to prove she had the means to pay for the visa. She also required her medical examination; Swiss bank account documents and previous visa information were contained on the computer and did not have hard copies and could not be obtained quickly from third parties such as an overseas bank. She stated like most people in today’s age, they do not print hardcopies of all documents, instead maintaining electronic records.

21. The Tribunal Member asked why she could not attend a library or enlist the help of a friend. The applicant stated that due to her location in Western Australia and not owning a motor vehicle that even if she had all the documentation, that she could not simply attend a public library. Further, due to her living in Australia for a short period of time she had not made close friends with anyone, and could not confide in anyone to help her lodge the visa.

22. The Tribunal also called oral evidence from the applicant’s partner. The applicant’s de facto partner gave evidence that in 2021 until present, he is employed on the Bayu-Undan gas and oil fields in the Timor Sea. He is an essential worker, working on the oil rigs, operating critical infrastructure to ensure the essential supply of energy to Australia. This involves fly-in and fly-out (FIFO) work from Western Australia to Darwin and thereafter offshore Australia in the Timor Leste waters at short notice and often extended periods of time. At the time of application this involved him flying from Western Australia to Darwin where he was subject to mandated and strict COVID-19 quarantine and lived in a pre-mobilisation isolation camp. He stated in the lead up to the application that he was away from his home for extensive periods undertaking critical work. On 10 March 2021 upon his arrival at the camp he was advised that there was no WIFI connection and despite numerous attempts to lodge the visa he was unsuccessful. The Tribunal understands that this was unusual and the camp does not generally encounter WIFI and internet complications.

23. In considering whether there were factors beyond the applicant's control, the Tribunal has had regard to the decisions in Su v MIAC [2007] FMCA 318; and Liu v MIAC [2010] FMCA 60.

24. 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.

25. In the case of Su[1], 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.

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

26. 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, 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. In upholding the Tribunal’s decision, the court reiterated that the test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

27. At hearing the Tribunal Member carefully examined the time chronology and the conduct of the applicant and her de facto partner leading up to the time of application. Although the Tribunal Member was initially troubled by the applicant’s claims, after considering the applicant and her de facto partner’s evidence, the Tribunal is satisfied that there were factors beyond the applicant’s control.

28. The applicant’s de facto partner has a highly unusual occupation and work schedule in the critical resource sector. In 2021 leading up to the time of the application, he was flying in and out of Western Australia at short notice and unpredictable times. This was compounded by triple quarantine requirements imposed by the Western Australian, Northern Territory and Commonwealth governments. It was evident to the Tribunal Member that this made life and communication very difficult for the applicant and her de facto partner. As a result, the applicant’s de facto partner was separated from the applicant for prolonged periods of time leading up to the time of application and the Tribunal is satisfied as a result, the applicant was unable to compile the relevant documentation to submit her visa application prior to the expiry of her visa. Further, the Tribunal accepts the applicant’s de facto partner’s evidence that upon leaving Western Australia on 10 March 2021, and reaching his remote camp in the Northern Territory, he encountered internet connectivity issues which prevented him lodging the applicant’s visa and that internet connectivity was not usually a problem at his workplace. The applicant and her de facto partner presented as credible and reliable witnesses. Given the extraordinary chain of events and conditions which the applicant and her de facto partner were subject to, the Tribunal is satisfied that the circumstances were beyond the applicant’s control. The Tribunal further accepts the circumstances were beyond the applicant’s control. The Tribunal is therefore satisfied that the applicant meets subclause 3004(c).

29. The applicant is a 37 year old woman from Columbia. The applicant wished to stay longer in Australia due to the COVID-19 pandemic which led to travel restrictions and limited international flights. The Tribunal accepts the applicant’s evidence and is therefore satisfied that these are compelling reasons for the grant of the visa and that the applicant meets subclause 3004(d).

30. Based on the evidence before the Tribunal, the Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to her last visitor visa (excluding the condition with which the applicant was in breach because the visa had expired at the time of application for the visa which is the subject of this review), and the Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to the subsequent bridging visa that he was granted. The Tribunal therefore finds the applicant has met the requirements of subclause 3004(e)(ii), and therefore the applicant meets subclause 3004(e).

31. There is no evidence before the Tribunal to indicate that the applicant would not have been entitled to the grant of a visitor visa, if the applicant had applied for the visitor visa whilst the holder of a substantive visa at the time of application. Therefore, the applicant meets subclause 3004(f).

32. Based on the information available to the Tribunal, the Tribunal is satisfied that the applicant intends to comply with the conditions to which the visa would be subject. Therefore, the applicant meets subclause 3004(g).

33. The last visa held by the applicant was not a transitional (temporary) visa, and therefore the requirements of subclause 3004(h) do not apply.

34. 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

1. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

   ·cl 600.223 of Schedule 2 to the Regulations

   Naomi Schmitz
   Member