Gursewak Singh (Migration)

[2024] AATA 838

Gursewak Singh (Migration) [2024] AATA 838 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gursewak Singh

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  2304759

HOME AFFAIRS REFERENCE(S):          BCC2023/1494260

MEMBER:David Crawshay

DATE:10 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 10 April 2024 at 3:05pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – not holder of substantive visa at time of application – factors beyond applicant’s control – misunderstanding of conditions and expiry date of previous visa – 3-month stay, with maximum stay of 12 months within 18-month period – relative’s 12-month stay visa – desire to avoid three-year ban not compelling reason – decision under review affirmed

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

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v Minister for Immigration [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 23 March 2023 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 3 March 2023. 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 delegate refused to grant the visa on the basis that the applicant did not meet cl.600.223 because he did not satisfy Schedule 3 criterion 3004.

4. The applicant appeared before the Tribunal on 10 April 2024 to give evidence and present arguments. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether cl.600.223 is met. Clause 600.223 provides as follows:

   (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.

7. It is not in dispute that the applicant in the present case was in Australia at the time of application, being 3 March 2023. Therefore, he is required to satisfy cl.600.223.

8. It is also not in dispute that the applicant did not have a substantive visa at the time of application. He is therefore unable to satisfy cl.600.223(1) and must satisfy cl.600.223(2).

9. The applicant’s last substantive visa was a Subclass 600 visa. As the applicant’s last substantive visa was not a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream, he satisfies cl.600.223(2)(a).

10. The issue now becomes whether the applicant satisfies cl.600.223(2)(b), which requires him to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

    Criterion3004

11. Criterion 3004 of Schedule 3 applies where, relevantly, an applicant ceased to hold a substantive visa or entered Australia unlawfully and has not subsequently been granted a substantive visa. In the present case, the applicant’s last substantive visa ceased on 17 February 2023, which is before the date he applied for the present visa. He is therefore required to satisfy criterion 3004.

12. In these circumstances, the Minister must be satisfied of all of the following:

    ·an 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); and

    ·the last visa or entry permit held (if any) 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 – criterion 3004(h).

    Is the applicant not the holder of a substantive visa because of factors beyond his or her control?

13. 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 his control.

14. In considering whether these constituted factors beyond the applicant's control, the Tribunal has had regard to the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, which involved a Subclass 457 visa and Schedule 3 criterion 3004. 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 judgement 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.

15. In an undated letter provided at the Department stage, the applicant relevantly stated as follows:

    However, what followed was a genuine and inadvertent blunder. Despite all my best efforts, I missed the visa expiry date of my visitor visa, the date before which I supposed to leave the country.

16. In a separate undated letter provided at the Department stage, the applicant wrote in substantially similar terms.

17. Since these letters, a submissions letter dated 2 April 2024 has been provided by the applicant’s representative. This letter relevantly stated as follows:

    i.Our client Gursewak Singh is currently on a Bridging Visa C. His tourist visa was applied on 03 March 2023.

    ii.Initially, he held a Visitor (Tourist) (subclass 600) visa which ceased on 17 February 2023. His visa was granted on 15 October 2022 with a three months stay with 8558 – Maximum 12 months stay in 18 months.

    iii.Our client travelled with a relative whose visa allowed a stay period of 12 months. Mistakenly assuming his own visa had a similar duration, he remained unaware of the expiration of his three-month stay period until receiving a message from the department on March 3, 2023.

    iv.This is what caused the applicant to become illegal entrant or a person without a substantive visa.

    v.Understanding the severe repercussions of departing Australia as an illegal non-citizen, our client was determined to avoid a three-year ban that would significantly impact his immigration record.

    vi.The primary motivation behind our client's application for a further visitor visa was to rectify his immigration status and avoid the consequences of unlawful presence.

    vii.It is crucial to highlight that the visa applicant's status as an unlawful non-citizen stemmed from a lack of understanding regarding immigration regulations. Unaware of the visa conditions, the applicant inadvertently found themselves in breach of Australian immigration laws.

    …

    viii.The applicant's circumstances can be attributed to factors beyond their control, as they were unaware of their visa conditions.

    ix.Lack of understanding regarding immigration regulations led our client to become unlawful, thereby subjecting them to schedule 3 criteria.

    x.Considering the age factor, we can advocate that our client had limited knowledge on the immigration policies and lacked a proper guidance.

    xi.Upon notification from the department regarding their visa status, our client promptly took steps to rectify the situation by submitting an application for a further visitor visa.

    xii.Thus, we assert that our client's illegal status was a result of their lack of awareness and understanding of immigration regulations, constituting circumstances beyond their control. Moreover, also considering the age factor, our client is only 22 years which implies his lack of understanding and awareness of the immigration guidelines.

18. At hearing, the Tribunal asked the applicant if he considered his circumstances to constitute factors beyond his control. He replied that he came here to attend the birthday of his sister’s daughter and wanted to spend some time with her. He said that his sister’s mother-in-law had left but he wanted to stay on for longer. He said that after he was informed of his overstaying, he went to an agent who told him that if he left now there will be a ban put in place. He agreed with the Tribunal that this was why he applied for another visa.

19. The Tribunal suggested to the applicant that it was well within his control to make himself aware of the expiry date of his visa and to take steps to ensure that he applied for a substantive visa within time. In response, the applicant told it that he misunderstood the visa conditions of his sister’s mother-in-law, because she was on a longer visa. He said that he was supposed to go back overseas in March [in 2023] but then received an email that he had overstayed, at which point he went to an agent.

20. The Tribunal heard from the applicant that his previous visa was valid for three years but with a condition that he could not spend more than three months onshore at any one time. To this, the Tribunal put to him that this did not require any especial knowledge of migration regulations or framework. The applicant responded that he had come to Australia earlier and had stayed for three months (on a different visa). He said, however, that on this occasion his sister misread the top of the letter for his visa where it stated that the applicant was only allowed to stay for a maximum of 12 months within an 18-month period.

21. In oral submissions, the applicant’s representative somewhat curiously told the Tribunal that it agreed with it that knowing the conditions of one’s visa may not be something beyond one’s control. He submitted, however, that the applicant’s visa was confusing for a new person to Australia as it states that there is a maximum stay of 12 months within an 18-month period. At this point, the Tribunal put to him that the applicant had previously travelled to Australia, to which he agreed. The applicant’s representative submitted that the applicant had relied on his sister’s advice and that this was beyond his control. The Tribunal put to the applicant’s representative that the visa grant letter would have stated the requirement for three month stays, to which he agreed. The applicant’s representative submitted that the applicant was not knowledgeable and that he relied on his sister.

22. The Tribunal has considered the evidence in front of it. According to the applicant’s admission in the undated letters, he is not the holder of a substantive visa because he missed the expiry of his previous visa and did not apply for the present visa in time. According to the contents of the submissions letter of 2 April 2024, this behaviour was the result of the applicant mistakenly believing that he had a 12-month visa based on the requirements of a visa held by a relative, was otherwise unaware of his visa conditions, had limited knowledge and understanding of the “immigration policies” and “immigration regulations”, and lacked “proper guidance”. At hearing, the Tribunal heard from the applicant that he relied on the advice of his sister who had misread the visa grant letter, which is a novel claim. It also heard that he had previously travelled to Australia and had stayed for three months.

23. While the applicant’s representative submitted in writing and at hearing that these factors constituted circumstances beyond his control, the Tribunal takes a different view. Complying with the requirements of one’s visa while in Australia is a basic expectation of all people who hold visas. In the present matter, it was not something that required any knowledge beyond the ability to read and comprehend the requirement that the applicant not stay for any longer than three months-at-a-time, which was contained in the visa grant letter. It certainly does not require an especial knowledge of the immigration regulations or policies, or proper guidance. Furthermore, the applicant relying on his sister is not a factor beyond his control. It was always open to him to read the visa grant letter himself and come to his own conclusion. In any case, the Tribunal finds based on the applicant’s testimony at hearing that he had previously travelled to Australia and had adhered to the requirement to not stay for longer than three months-at-a-time during that visa. This suggests that the applicant had some knowledge of the three-month requirement for certain visitor visas.

24. The Tribunal finds that while the applicant might have made an inadvertent mistake, it was very much within his control in a practical or realistic sense to take steps to ensure that he is the holder of a substantive visa at the time of this decision.

25. In light of the above findings made by it, the Tribunal does not accept that the applicant is not the holder of a substantive visa because of factors beyond his control.

26. The applicant does not meet Schedule 3 criterion 3004(c).

    Are there compelling reasons for granting the visa?

27. The Tribunal has considered whether there are compelling reasons for granting the visa. The expression “compelling reasons” is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to grant the visa and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of granting the visa: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Department policy states that compelling reasons may stem from compassionate factors, the applicant's circumstances or those of another and circumstances beyond the applicant’s control (such as serious accident or illness depending upon the circumstances).

28. At hearing, the Tribunal asked the applicant if there were any compelling reasons for granting the visa. He said that his father died last year. He said that he wanted to go back to India to sort out property-related matters, and that was why he wanted to wait until the visa was granted. The Tribunal put to him that he could have gone back to India even if his visa was not granted, to which he replied that he wanted to make sure his record was clean. When asked why that was a compelling reason, he replied that his agent told him that he will be banned, so he preferred to have a visa.

29. The Tribunal is not aware of any other information on the Department or Tribunal files that deals with the issue of compelling reasons for granting the visa.

30. The Tribunal has considered the information in front of it. While it notes information about the death of the applicant’s father and the claims made by the applicant that he wanted to go back to India to sort out property-related matters, he has not shown how being granted the present visa would be relevant to either of these. Thus, they are not compelling reasons for granting the visa.

31. The Tribunal has considered the applicant’s desire to ensure that his record is clean and whether this is a compelling reason for granting the present visa. It infers from this that the applicant wishes to not be subject to the three-year exclusion on applying for some visas pursuant to public interest criterion (“PIC”) 4014. It has also considered whether the applicant’s preference to be granted the visa is a compelling reason for granting the present visa.

32. The Tribunal finds, however, that these are mere desires or preferences, and the applicant has not identified any need to remain in Australia other than to ensure that he leaves here without being subject to the three-year exclusion period in PIC 4014, and has not identified any reason to return here in the next three years. Needless to say, these reasons are not sufficiently powerful by themselves to lead the Tribunal to make a positive finding in favour of granting the visa

33. Having had regard to the applicant’s circumstances, both individually and collectively, and for the reasons stated above, the Tribunal is not satisfied that there are compelling reasons for granting the visa.

34. The applicant does not meet Schedule 3 criterion 3004(c).

35. Subcriteria (c) and (d) of Schedule 3 criterion 3004 are cumulative requirement for satisfying Schedule 3 criterion 3004, meaning that they both need to be satisfied. As neither is satisfied, the applicant does not meet Schedule 3 criterion 3004 in its entirety.

36. Because the applicant does not meet Schedule 3 criterion 3004, he does not satisfy cl.600.223(2)(b), which is a requirement for the grant of the visa.

    DECISION

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

    David Crawshay
    Member