Hari Govind (Migration) - [2022] AATA 2669

Hari Govind (Migration) [2022] AATA 2669 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hari Govind
CASE NUMBER:  2111595
HOME AFFAIRS REFERENCE(S):          BCC2021/1417820

MEMBER:Jane Marquard
DATE:14 June 2022
PLACE OF DECISION: Sydney
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:
Public Interest Criterion 3004 for the purposes of cl 600.223 (2) of Schedule 2 to the Regulations

Statement made on 14 June 2022 at 11:55am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa – Schedule 3 criteria – whether factors beyond applicant’s control – global COVID-19 travel restrictions – health reasons – lack of language skills – compelling reasons for granting the visa – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004
CASES
Babicci v MIMIA [2005] FCAFC 77
Liu v MIAC [2010] FMCA 60
MZYPZ v MIAC [2012] FCA 478
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su v MIAC [2007] FMCA 318
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 August 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant is a man from India. His wife also applied for a visitor visa, which was also refused, and is the subject of a separate review.
The applicant applied for the visa on 13 July 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.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which requires the visa applicant to satisfy the Minister that he meets Schedule 3 criteria. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 of the Act, because at the time he applied for the visa he did not hold a relevant substantive visa, and did not satisfy criterion 3004 in Schedule 3 to the Regulations.
There was no need for a hearing in this matter, as the Tribunal was able to determine this matter on the papers, on the basis of written submissions provided to the Tribunal.
For the following reasons, the Tribunal has concluded that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hari Govind (Migration)

Details

AGLC: Hari Govind (Migration) [2022] AATA 2669
Case: [2022] AATA 2669
Decision Date: 14 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), made by Hari Govind. The applicant was in Australia at the time of application but did not hold a substantive visa, having previously held a Visitor visa that expired shortly before the application date. The primary dispute concerned whether the applicant met the requirements of clause 600.223 of Schedule 2 to the Migration Regulations 1994, specifically the Schedule 3 criteria.

The Tribunal was required to determine if the applicant satisfied clause 600.223(2)(b), which necessitates meeting Schedule 3 criteria 3001, 3003, 3004, and 3005. Central to this determination was Public Interest Criterion 3004, which includes several sub-criteria. These included whether the applicant was without a substantive visa due to factors beyond their control, whether there were compelling reasons for granting the visa, and whether the applicant had substantially complied with the conditions of their previous visas.

The Tribunal found that the applicant met the requirements of clause 600.223. While the case text does not detail the specific reasoning for each sub-criterion of PIC 3004, it indicates that the Tribunal was satisfied that the applicant met the criteria, including that the applicant was not the holder of a substantive visa due to factors beyond their control and that there were compelling reasons for granting the visa. The extensive list of supporting documents, including medical certificates for family members, evidence of ongoing family health issues, and counselling records, likely informed this satisfaction.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration. The direction was that the visa applicant meets Public Interest Criterion 3004 for the purposes of clause 600.223(2) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations. That clause provides (in paraphrase):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.Was the applicant in Australia at the time of application? The Tribunal is satisfied that the applicant was in Australia at the time of application, being 13 July 2021. This is not an issue in dispute.Did the applicant hold a substantive visa at the time of application? The Tribunal is satisfied that the applicant did not hold a substantive visa at the time of application. As confirmed by the applicant in submissions, and by Departmental records, the last substantive visa held by him was a Visitor visa Subclass 600 which expired on 8 July 2021. Findings on Clause 600.223(1) As the applicant was in Australia and did not hold a substantive visa at the time of application, cl 600.223(1) is not applicable.Did he hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream? The last substantive visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream as it was a visitor visa. Therefore cl 600.223(2)(a) is not applicable. Does the applicant meet cl 600.223(b) in that he satisfies Schedule 3 criteria? As cl 600.223(1) and cl 600.223(2)(a) are not applicable, the issue is whether the applicant satisfies cl 600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. In regard to Schedule 3 criteria 3004, the Tribunal must be satisfied of all of the following:·the applicant is not the holder of a substantive visa because of factors beyond his 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 control (criterion 3004(c))?

Decision

Reasons for decision

Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations.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:Public Interest Criterion 3004 for the purposes of cl 600.223 (2) of Schedule 2 to the RegulationsJane MarquardMemberAttachment A – List of Documents·Screenshot of Telstra job details page for Akhil Jarwal. States Mr Jawal has been employed full time since 18/12/17 as a customer service SME.·Handwritten medical note from Fortis Hospital in Mohali, India addressed to Mrs Manju dated 23 March 2018.·Full blood examination results for Hari Govind dated 18 September 2020. ·Pathology report for Jarwal Chetna (applicant’s daughter) dated 9 January 2021.·Allergy report dated 18 February 2021 from Dr Mittal Patel at Epping Allergen Medical Group in relation to Bheeni Chaudhry (applicant’s daughter-in-law). States that Bheeni is to avoid anti-inflammatories and paracetamol during pregnancy.·Referral to an MRS and prescription for Mirtazapine for Manju Devi dated 9 March 2021. ·Death Certificate for Hari Dutt Bhatt, the maternal grandfather dated 4 May 2021.·Letter dated 27 May 2021 confirming the employment of Chetna Jarwal with Lab Productions Pty Ltd as an extra on a television series from 23 April 2021 to 17 September 2021.·Screenshots of transfers of $240 to Yellow Brick Counselling between 16 June 2021 and 9 December 2021.·Invoice from Yellow Brick Counselling to Manju Devi for counselling services dated 30 June 2021.·Email between Chetna Bhatt and Samantha Meuleman regarding accommodation for ‘Survivors’ dated 30 June 2021. ·Email between Chetna Bhatt and Samantha Meuleman regarding call sheet for extras on Survivor dated 2 July 2021. ·Email between Chetna Bhatt and Samantha Meuleman regarding accommodation for ‘Survivors’ dated 4 July 2021. ·Letter from ‘Capstone Client Services, Legal Training Australia Pty Ltd’ addressed to ‘Dear Candidate’. Giving instructions for an online exam that was held on 19 July 2021 for the Migration Agents Capstone Assessment. Applicant states the letter is for Abhishek Bhatt.·Letter from ‘Capstone Client Services, Legal Training Australia Pty Ltd’ addressed to ‘Dear Candidate’. Giving instructions for an online exam that was held on 26 July 2021 for the Migration Agents Capstone Assessment. Applicant states the letter is for Abhishek Bhatt.·Summary report of pregnancy, birth and postnatal period of Bheeni Chaundhry from Dr Priya Rajagopal dated 5 August 2021. ·Second page of the above report. States that postnatal Ms Bheeni had allergic reactions to medications.·Letter dated 6 August 2021 from Anu Bhagwat at Yellow Brick Counselling stating that Manju Devi has symptoms of depression and requires continued family support.·Letter dated 28 October 2021 from Any Bhagwat at Yellow Brick Counselling stating that Manju Devi has symptoms of complex PTSD. Recommends a psychiatrist.·PhD offer letter dated 5 November 2021 from RMIT University to Abhishek to commence research on 1 March 2022 and complete 27 February 2026.·Invoice from Yellow Brick Counselling to Manju Devi for counselling services dated 31 December 2021. ·List of patient appointments for Manu Devi throughout 2022 with Plenty Road Counselling.·PhD offer letter dated 8 February 2022 from RMIT University to Bheeni to commence research on 1 March 2022 and complete 27 February 2026.·Payslip of Chetna Jarwal from Tradewind Australia from period ending 15 May 2022.·Referral letter dated 17 March 2022 from Dr Barenya Das to Dr Rakesh Khanna about Mrs Manju Devi for psychiatric treatment for PTSF and anxiety.·Letter from Tradewind Australia dated 8 April 2022 confirming that Chetna Jarwal is registered as a casual relief teacher from 10 August 2021 to current.·Medical certificate issued to Manju Devi from Northpark Private Hospital indicating she is unfit to travel dated 17 May 2022. ·Medical certificate issued re: Manju Devi from Northpark Private Hospital certifying she is unwell to travel dated 20 May 2022. ·Medication prescription for Mrs Manju Devi for Escitalopram (used to treat depression and anxiety) dated 20 May 2022. ·Certificate dated 28 November 2019 confirming Abhishek Bhatt holds all shares in AB Engineers Pty Ltd. ·Screenshots of text messages dated 4 – 6 July 2020 asking ‘Aleem Client18’ to call.·Letter dated 19 November 2020 from I-Med Radiology Epping about Mrs Bheeni Chaundry for a first trimester ultrasound. Notes a miscarriage took place a few months prior. ·Letter dated 5 January 2021 with results of first trimester ultrasound for Bheeni Chaundry.·Letter dated 15 June 2021 with results of third trimester ultrasound for Bheeni Chaundry.·Photograph of mirtazapine medication dated 20 July 2021 for Mrs Manju Devi·Prescription dated 3 August 2021 to Manju Devi for Mirtazapine tablets ·Prescription dated 4 August 2021 to Hari Govind for Janumet tablets and Atorvastatin tablets ·Letter dated 5 August 2021 from Dr Priya Rajagopal certifying that Ms Bheeni Chaundry delivered a live male baby on 3 July 2021 and will need maternity leave for 3 months.·Letter from Dr Barenya Das dated 10 August 2021 confirming that Mrs Manju Devi is in the doctor’s care for anxiety and depression. States that if Mrs Devi left the country it would be detrimental to her mental health. ·Consent form dated October 2021 for Mrs Bheeni Chaundry for an iron infusion

Ratio Decidendi

Legal Principle Established

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