Gyawali (Migration)

[2023] AATA 999

Gyawali (Migration) [2023] AATA 999 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sudip Gyawali

CASE NUMBER:  2201796

HOME AFFAIRS REFERENCE:               BCC2021/851689

MEMBER:L Symons

DATE:12 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 12 April 2023 at 4:54pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – studies completed in Australia – plans for skilled work in Australia – travel restrictions – registered and enrolled mental health nurse – Ministerial Intervention consideration – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001

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 28 January 2022 to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Home Affairs (the Department) for the visa on 12 January 2022. At the same time, his wife, Bhabana Paudel Gyawali, daughter, Sadhana Gyawali and son, Sakshat Gyawali, also lodged applications for Visitor (Class FA) Subclass 600 visas.

3. 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.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.223(2) because he did not meet the requirements of Schedule 3, criterion 3001. On 10 February 2022, he applied to the Tribunal for a review of that decision. On that date, his wife (file no: 2201797), daughter (file no: 2201799) and son (file no: 2201801) also lodged applications for review.

5. The applicant appeared before the Tribunal, via video, on 16 March 2023 to give evidence and present arguments in a joint hearing conducted in relation to his application and the applications of his wife, daughter and son. He confirmed that he consented to a joint hearing of his application and the applications of his wife, daughter and son. He stated that he was giving evidence for and on behalf of his daughter and son as their parent and guardian as they are minors. His wife also stated that she was giving evidence for and on behalf of her daughter and son as their parent and guardian as they are minors. He stated that he is a witness in his wife’s case and she is a witness in his case.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. The issue in the present case is whether the applicant meets the requirements of Schedule 3, criterion 3001 for the purpose of cl.600.223.

8. The applicant filed a copy of the Department’s Decision Record dated 28 January 2022 with the Tribunal. It indicates that his last substantive visa was a subclass 485 (Temporary Graduate) visa which ceased on 1 June 2021. He applied for the subclass 600 Visitor visa, currently subject to review, on 12 January 2022 and was the holder of a subclass 030 Bridging C visa at that time. Therefore, he is required to satisfy the requirements of cl.600.223(2).

9. Clause 600.223(2) 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 and the last substantive visa held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, he must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. The Department refused his visa application on the basis that he did not satisfy Schedule 3, criterion 3001 and was therefore unable to meet the requirements of cl.600.223(2).

10. Schedule 3 criterion 3001 is referred to in the attachment below. Criterion 3001(1) requires that the application for the subclass 600 Visitor visa is validly made within 28 days after the relevant day (within the meaning of subclause (2)). Criterion 3001(2)(c) provides that, if the applicant ceased to hold a substantive visa on or after 1 September 1994, the relevant day is the last day when the applicant held a substantive visa.

11. The evidence before the Tribunal is that the applicant’s last substantive visa (a subclass 485 (Temporary Graduate) visa) ceased on 1 June 2021. Therefore, the Tribunal finds that the relevant day is 1 June 2021.

12. On 19 January 2022, the delegate wrote to the applicant and invited him to comment on the adverse information that he did not hold a substantive visa at the time of application. He was required to respond in writing within 7 days of receipt of the letter. He did not respond.

13. On 28 January 2022, the delegate refused the applicant’s application for a subclass 600 Visitor visa on the basis that he did not satisfy the requirements of Schedule 3, criterion 3001 and therefore did not meet the requirements of cl.600.223.

14. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 28 January 2022.

15. During the hearing. the applicant gave evidence that he first came to Australia on 31 July 2014 on a Student visa. He was accompanied by his wife who was on a Student Dependent visa. His daughter and son joined them in Australia a couple of years later on Student Dependent visas. He was granted two subsequent Student visas and has completed a Master of Teaching for Primary School and a Certificate III in Disability Support. On 1 June 2019, he was granted a subclass 485 Temporary Graduate visa which was valid until 1 June 2021.

16. The applicant stated that he had been a primary school teacher in Nepal for 18 years. His plan was to do an IELTS test, register as a teacher and teach in Australia. He needed to achieve a score of 8 in speaking in the IELTS test and was not able to do so. He is currently (on a Bridging visa and) not able to work. When he was able to work, he worked as a Disability Support Worker. He has also worked in the areas of respite care and in hospitality. In the meantime, his wife worked in aged care and studied nursing. She has completed a Diploma in Nursing and wants to be an Enrolled Nurse.

17. The applicant stated that he had prepared his applications for Student visas and the subclass 485 Temporary Graduate visa and was successful in obtaining these visas. This gave him confidence. There was a change in the rules and he was able to apply for an extension of his subclass 485 visa. He decided to lodge an application online and made a big mistake. He pressed the button for ‘Subsequent visa’ instead of ‘Extension visa’ and mistakenly applied for the wrong type of visa for himself and his family. He did not realise this at the time particularly as he and his family were issued with Bridging visas and he received an email in relation to health checks which he complied with.

18. The applicant stated that in December 2021 he received a telephone call from a case officer named Sam from the Department and was informed that he had applied for the wrong visa. The case officer informed him that he needed to withdraw his visa application. He did not realise the consequences of withdrawing his visa application, relied on what the Case Officer told him and withdrew his visa application. He then received a letter from the Department informing him that he needed to leave Australia within 28 days. He consulted his former lawyer and was shocked to find out that he had no visa and needed to leave Australia within 28 days.

19. The applicant stated that his wife was due to complete her nursing course in May 2022 and his daughter was doing her Higher School Certificate (HSC) at the end of 2022. If they had returned to Nepal, his daughter would have been required to redo Year 11. He really wanted both of them to complete their studies. Further, the world was starting to recover from the Covid-19 pandemic at that time but the flights to Nepal were infrequent and it was not possible to get tickets. His former lawyer advised him to apply for Visitor visas so his wife and daughter could complete their studies. He did so and their applications for Visitor visas were refused.

20. The applicant stated that his former lawyer advised him to make applications for review to the Tribunal. He inquired whether he would be allowed to work whilst awaiting the Tribunal’s decision and was told that he could as other applicants had been granted work rights. He was granted a Bridging C visa with no work rights. He and his family have been living off their savings.  

21. The applicant stated that his wife completed her Diploma in Nursing on 6 or 8 May 2022 and his daughter completed her HSC in November 2022. She wants to study at university and has been offered courses at Adelaide University and Flinders University. She has to pay the fees for international students which is approximately $40,000.00. He and his wife are not working, are only just surviving and cannot afford the fees. His son is in school in Year 7.   

22. The applicant stated that at the time he applied for Visitor visas for himself and his family on 12 January 2022 there were two reasons for doing so. Firstly, they were unable to get tickets to return to Nepal. Secondly, he wanted his wife and daughter to have time to complete their courses. He no longer requires Visitor visas for his family. His wife is now a registered nurse in Australia. When asked whether he had obtained immigration advice from a lawyer or migration agent in relation to his wife’s visa options, he responded no. She has friends who have completed their studies and applied for visas. When asked whether they had a visa refusal on their records, he responded that he did not think so.

23. The applicant stated that his family’s circumstances have now changed. His wife is a registered nurse. She has a skills assessment. She is now studying a Diploma in Mental Health. As a skilled worker she should be able to live and work in Australia. His son has lived in Australia for 6 years and his daughter has lived here for 5 years. A significant part of their childhood has been spent in Australia. They have friends here and have learnt the Australian culture. He does not want to change their lives. If his wife is able to get a visa, he will be her dependent and will care for the family.

24. The applicant’s wife gave evidence that she came to Australia with her husband on 31 July 2014 on a Student Dependent visa. Her husband was subsequently granted a subclass 485 Temporary Graduate visa and she was granted a subclass 485 Temporary Graduate Dependent visa. She completed a Diploma of Nursing in May 2022 and graduated in December 2022. She is now enrolled and registered and has obtained a skills assessment. She is currently studying a Diploma of Mental Health.

25. The applicant’s wife stated that she and her family applied for subclass 600 Visitor visas on 12 January 2022. At that time, it was difficult to get flights back to Nepal. She also wanted to complete her nursing studies and wanted her daughter to complete her HSC. She wanted to work as an enrolled nurse in the Australian health care system. She has not been working since January 2022. Prior to that, she worked in aged care for 7 years. It has been really difficult for her as a qualified and experienced skilled worker not to be able to work. She has not made any plans to depart Australia as she wants to work in Australia as a nurse if possible.

Findings

1. Having considered all the evidence, the Tribunal finds that the applicant and his wife are credible witnesses. The Tribunal accepts his evidence that he was the holder of a subclass 485 Temporary Graduate visa and had the option to apply for an extension of this visa during the Covid-19 pandemic. The Tribunal accepts that he lodged an online application, mistakenly picked the option of ‘Subsequent visa’ instead of ‘Extension visa’ and applied for the wrong type of visa for himself and his family. The Tribunal accepts that he was not aware of this mistake until sometime later when he received a telephone call in December 2021 from a Departmental case officer named Sam who informed that he had applied for the wrong visa.

2. The Tribunal accepts that the case officer informed the applicant that he needed to withdraw his visa application and he followed this advice without understanding the consequences of withdrawing his visa application. The Tribunal accepts that when he received a letter from the Department informing him that he needed to leave Australia within 28 days he consulted his former lawyer and was shocked to find out that he had no visa. The Tribunal accepts that he acted on the advice of his former lawyer and applied for Visitor visas for himself and his family. The Tribunal accepts his explanation for why he applied for the Visitor visas. The Tribunal accepts that he and his family were granted Bridging visas with no work rights and have been living off their savings which are now exhausted. 

3. The Tribunal considers it unfortunate that, having made an understandable mistake by applying for the incorrect type of visa, the applicant compounded the problem by following advice given to him by a Departmental case officer and by his former lawyer. During the time when he and his wife have been on Bridging visas with no work rights, he has not been able to work as a Disability Support Worker and his wife has not been able to work as an aged care worker or as a nurse. These are critical care sectors in Australia where there is a significant shortage of skilled and experienced workers.

4. The Tribunal is sympathetic to the applicant and his family and the circumstances in which they find themselves. However, the Tribunal does not have the discretion to waive the requirements of Schedule 3, criterion 3001 for a Visitor visa.

5. The Tribunal finds that the applicant was in Australia at the time he applied for the subclass 600 Visitor visa on 12 January 2022. The Tribunal finds that he was not the holder of a substantive visa at the time of application. The Tribunal finds that his last substantive visa was a subclass 485 Temporary Graduate visa that ceased on 1 June 2021. Therefore, the Tribunal finds that the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

6. The Tribunal has considered whether the applicant satisfies schedule 3, criterion 3001, as required in cl.600.223(2)(b). The Tribunal finds that he ceased to hold a substantive visa on or after 1 September 1994 as his last substantive visa ceased on 1 June 2021. The Tribunal finds that 1 June 2021 is the relevant day for the purposes of cl.600.223(2). The Tribunal finds that the application for the subclass 600 Visitor visa was not validly made within 28 days of the relevant day.

7. In view of the above, the Tribunal finds that the applicant does not meet the requirements of Schedule 3, criterion 3001. As he does not satisfy Schedule 3, criterion 3001, he is unable to meet the requirements of cl.600.223(2)(b) and cl.600.223 in its entirety. 

8. For the above reasons, the Tribunal finds that the applicant does not satisfy the requirements of Schedule 3, criterion 3001 and therefore finds that the requirements of cl 600.223 are not met.

   Ministerial intervention

9. The Tribunal considers that the circumstances of this case may raise the following matters:

   ·the application of relevant legislation leads to unfair or unreasonable results in this case

10. The applicant is a 47-year-old man from Nepal. He is in Australia with his wife and their two children; a daughter aged 17 years and a son aged 12 years. He arrived in Australia on 30 July 2014 as the holder of a subclass 573 Student visa. He completed a Master of Teaching for Primary School degree and a Certificate III in Disability Support. He has 18 years’ experience as a primary school teacher in Nepal and hoped to complete his Master’s degree, register as a teacher and teach in Australia. He was unable to do so as he did not get the required score of 8 in speaking in an IELTS test. Since coming to Australia he has been working in the areas of hospitality, respite care and as a Disability Support Worker after he obtained his qualifications. He has not been able to work since 14 January 2022 when he was granted a Bridging visa subject to a no work condition (8101).

11. The applicant’s wife is a 40-year-old woman from Nepal. She accompanied her husband to Australia on 30 July 2014 as the holder of a subclass 573 Student Dependent visa. She studied in Australia, completed a Diploma in Nursing in May 2022 and graduated in December 2022. She is currently studying a Diploma in Mental Health. She has been working in the aged care sector since coming to Australia. She is now a registered and enrolled nurse and has obtained a skills assessment. On 14 January 2022, she was granted a Bridging visa subject to a no work condition (8101) and has been unable to work as a nurse.

12. The applicant’s daughter is 17 years old. She completed Year 12 in Australia in November 2022. She would like to study at University and has been offered places in courses at Adelaide University and Flinders University. In view of her current visa status and her parents’ visa status and financial circumstances, she is unable to study at University or to work. The applicant’s son is 12 years old and attends school. He is currently in Year 7.  

13. On 1 June 2019, the applicant was granted a subclass 485 Temporary Graduate visa which was valid until 1 June 2021. His family members were granted Dependent visas. Due to changes made during the Covid-19 pandemic, he had the opportunity to apply for an extension of his visa. He made an online application and unfortunately selected ‘Subsequent’ visa instead of ‘Extension’ visa. This mistake resulted in him applying for the wrong type of visa. After making the application, he and his family were granted Bridging visas and were required to undertake health checks. He did not become aware of his mistake until December 2021 when he was contacted by a Departmental case officer and advised to withdraw his visa application. He did so without understanding the consequences for himself and his family. He then applied for Visitor visas on the advice of his former lawyer. He does not meet the requirements of Schedule 3, criterion 3001 and therefore does not satisfy the requirements for a subclass 600 Visitor visa.

14. The application of the requirements of Schedule 3, criterion 3001, in the circumstances of this case, may lead to unfair or unreasonable results particularly when the applicant and his wife have formal qualifications in Australia, he has been working in Australia as a Disability Support Worker, his wife has been working in the aged care sector and she is a qualified, registered and enrolled nurse who is unable to work because of her visa conditions. Their skills and experience are in the critical care sectors where Australia has a significant shortage of skilled workers.

    DECISION

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

    L. Symons
    Member

    ATTACHMENT

    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.

    Criterion 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.