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

1. 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.

2. 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.

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). 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.

4. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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?

8. 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)

9. 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?

10. 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?

11. 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.

12. 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))?

13. The Tribunal has considered the visa 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. The applicant provided submissions on 9 August 2021 to the Department. He said that the reason for further stay was ‘affected by global COVID-19 travel restrictions and the daughter in law is recovering after recently giving birth’. The applicant also provided a number of documents in support which are listed in Attachment A. The delegate of the Department was not satisfied that the applicant’s daughter could not have assisted him with the application if his daughter-in-law was giving birth. The delegate also noted that the applicant had applied for other visas so was familiar with the system.

15. The applicant’s son provided detailed submissions on his parents’ behalf on 21 May 2021 in support of this review and his father’s review. Further documentation was provided, and is listed in Attachment A. The submissions were as follows:

    ‘..My parents, the applicants arrived in Australia from India in July 2019 on a 12-month family sponsored visa with conditions 8503 and 8531. When they were unable to return to India due to international border closures occasioned by COVID-19, I applied for a waiver of condition 8503 which was granted. A further visitor visa was granted on 8th January 2021 and expired on 8 July 2021. The visitor visa application currently before the Tribunal was lodged on 13 July 2021.

    By way of introduction and summary, I would like to draw the Tribunal Member’s attention to the following points:

    a)The applicants do not have a history of visa non-compliance. They have been to Australia previously in 2016 and have always complied with the conditions on their visa.

    b)The applicants were unlawful for 4 days only before lodging the visitor visa application being considered by the Tribunal.

    c)My mother, Mrs Manju Devi does not read, write or speak English. My father, Mr Hari Govind can understand some words in English but cannot speak in English.

    d)Due to the medical health issues and other compelling personal and family circumstances described at paragraph 12-16 below, the applicants did not seek any checks or clarifications as to when their visa would expire.

    e)The reason why the applicants became unlawful was because of factors beyond their control including:

    i.The applicants were unable to obtain a return flight to India prior to the expiry of their visa due to COVID travel restrictions and border closures both in Australia and in India. Both the applicants were also suffering from medical conditions which meant they were incapable of travelling.

    ii.Due to Mrs Manju Devi’s fragile mental state, and her lack of English language, she was wholly reliant on family to lodge a further stay visa on her behalf. Mr Hari Govind too has poor English skills and was wholly reliant on his family for assistance.

    iii.The applicants have two children in Australia: a son (myself) and a daughter. As a result of the above matters, the applicants rely entirely on their children for assistance. Unfortunately, both of us children were facing circumstances beyond our control which prevented us from lodging a further visitor visa before the expiry of the applicants’ substantive visas. The specifics are outlined below ..

    (f) Despite the above, the applicants sought to regularise their status as soon as they became aware of the circumstances and a visitor visa application was lodged to replace the one that has expired..

    The prevailing circumstances

    9. The decision to apply for a further visitor visa was linked to the travel restrictions in place at that time, as well as our desire for my parents to remain in Australia to assist us after my wife delivered our first child. Melbourne had gone into its fourth lockdown from 28 May 2021 to 10 June 2021. My home city in India (Chandigarh) was also under lockdown during that time. My parents had travelled to Australia from our hometown of Chandigarh in July 2019. In fact, there were no flights operating between April and May 2021 due to Delta wave variant and lockdowns in India1. After 1st June 2021, that is the Phase 11 drive by the Indian Government, there was just one evacuation flight on June 14th, and that was from Sydney and not from Melbourne. Travel from Melbourne to Sydney was not possible at that time. Domestic travel was banned at that time and state borders were closed. So technically travel was practically not possible till October 2021.

    10. In the months before my parents’ visa expired, Qantas was not operating flights to India from Australia. Evidence supplied to the Tribunal verifies that this included the months of April, May and June 20212. Qantas had a few scheduled flights to India from Darwin in July which was after their visa expiry date.

    11. As a result of this new wave of COVID and related travel restrictions, we decided it would be a good idea for my parents to remain in Australia for a longer period. This would allow them to assist us once our first child was born. Unfortunately the events that unravelled in the coming months caused my parent’s to lodge their visitor visa when their substantive visa had expired.

    12. The evidence supports that my mother’s emotional and mental state was severely compromised in the months before and at the time her visa was expiring. My mother has suffered anxiety and depression for some years. This really was occasioned or at least compounded by myself and my sister migrating to Australia. This was the initial reason why we brought her to Australia in 2019. However, the circumstances of a prolonged lockdown in Melbourne due to COVID-19, and my wife suffering a miscarriage in September 2020 had left her somewhat vulnerable. When my wife got pregnant again in November 2020, my mother was very happy but my wife experienced a lot of medical issues during the pregnancy which caused my mother a lot of additional stress and anxiety. However, it was the death of her father in India on 26th April 2021 due to Covid-19, that was the hay that broke the camel’s back, and led to a substantial worsening of her condition. She was crippled by grief, shock and elevated anxiety that she could not travel back to attend her father’s funeral in India due to COVID-19 travel restrictions in place in India and Australia. She was inconsolable and spent her weeks doing little other than crying. She was very depressed, and her mental health was at its’ lowest. After some weeks we were able to convince her to obtain treatment for her mental health and after we consulted with the general practitioner, on his advice, she started counselling sessions in the month of June 2021. Since then, she has undertaken regular therapy to help alleviate her symptoms. She has also been taking medication prescribed by the GP.

    13. My mother will also give evidence that she was not aware of the exact date that her visa expired though she knew that it was close to when my son was due to be born. It will be my evidence that, before my grandfather died due to COVID and my mother’s mental health deteriorated significantly, my mother would usually always ask me when her visa was expiring and whether she would be able to get on a flight back to India due to COVID. I told her that we would apply for another visa for her to stay due to COVID restrictions and then she can assist my wife’s post-partum.

    14. The evidence will support that my mother’s reaction to the COVID lockdowns and specifically her father’s death due to COVID affected her in a way that affected her judgment. And she ceased to have the mental ability to even enquire as to when she was scheduled to return to India.

    15. My mother’s mental health condition is still very fragile and as a result of her deteriorating condition, the counsellor and the GP referred her to a psychiatrist in October 2021 and 17th March 2022 respectively. The psychiatrist began the treatment for anxiety and possible PTSD on 18 May 2022 and has deemed my mother unfit for travel. He has initiated intensive treatment and medications for her. He has booked her in for regular sessions in July and August 2022. Based on her current circumstances, it is the GP and counsellor’s recommendation that my mother needs full family support for her recovery.

    16. The evidence also supports that my father was experiencing health-related issues in the months before his visa expired including hypertension and diabetes. My father’s lymphocyte count was elevated in September 2020. GP referred him to get a CT scan of the chest. His pulmonary nodules were visible which suggested scarring. GP asked my father to do another blood test in 4-6 weeks to monitor the lymphocyte count. He got tested again in October 2020 and the number was still elevated. As per the blood report dated 11 November 2020, presence of CLL phenotype was detected but the count did not meet the revised criterion for the treatment of Chronic lymphocytic leukemia (CLL). He was asked to closely monitor the lymphocyte count. He was referred by the GP to see a Haematologist in February 2021. The Haematologist suggested my father to closely monitor the lymphocyte count. There was another follow-up test in September 2021 and January 2022 but the count was still elevated. CLL still could be the reason for the increased lymphocyte count. My father has been occupied with this health especially his increased lymphocyte count and potential risk of Chronic lymphocytic leukemia, apart from his already prevailing hypertension and diabetes. He was most anxious about returning to India in the wake of the delta strain of the COVID-19 pandemic given his medical issues and the high incidences of deaths of people with other medical issues including my grandfather. My father also became anxious and stressed, both with this medical conditions as well as mental state of my mother, especially after her father’s death. My father is also taking care of my mother and his presence is equally crucial to her full recovery.

    17. As a result of my parents’ medical issues and lack of English, the responsibility fell to myself or my sister to ensure that a further stay visa within the validity of their substantive visa. We are the only close relatives that my parents have in Australia. I provided significant information to the delegate in relation to the factors that prevented me from lodging a further stay visa. My circumstances can be summarised as follows:

    (a) My wife was expecting a baby in the month of July. The expected due date of delivery was 10th of July however, she started experiencing the labor pains on 1st of July. She was hospitalised on 3rd of July and delivered the baby on the same day.

    (b) My wife had to have an assisted forceps delivery along with an episiotomy which resulted in her having a number of stitches as a result of the delivery. Because of her inability to take antibiotics and pain killers due to allergic reactions, she faced a lot of problems and was in immense pain post-partum. Even the medications which were suggested by her allergy specialist which were thought to be not allergic, also reacted adversely on my wife and she had to be given antidote immediately.

    (c) My newborn son had lost weight during the hospital stay and he was not gaining weight at the rate expected. He had developed jaundice and we were required to spend an additional day at the hospital to keep track of his jaundice and weight. Originally, we were supposed to be discharged on the 7th of July but due to above circumstances. My wife was discharged on 8 July. My wife had been advised 3 months rest post-delivery by her doctor due to her episiotomy, her inability to take pain medicines as well as her haemorrhoid issues.

    (d) I had begun to prepare the application in ImmiAccount in late June 2021 but with my wife going into labour early on 1 July 2021, and the medical complications with the delivery and my son’s health which followed, I was solely focused on their health and wellbeing. I was trying to manage hospital visits and run a business amid a new COVID outbreak, whilst studying and caring for my parents. Once my wife got home, I was doing all this as well as caring for my wife and newborn son. This was an incredibly difficult period and I was sleep deprived and exhausted, and, I lost track of the days, and missed the deadline.

    (e) In addition to the above, I was also preparing for my Capstone assessment organized by Legal Training Australia, which was to be held on 19th and 26th of July 2021.

    18. The delegate appeared concerned that we had not provided any reason to explain why my sister did not assist my parents to lodge their visa application whilst they were still holding a substantive visa. My sister, Chetna Jarwal, will give evidence to the Tribunal that:

    (a) She is a professional Actor, model, and casual relief primary school teacher. Due to Covid 19 she had no work in schools for most of 2020 and up to and including July 2021. As Victoria was in continuous lockdown, she also had limited acting and modelling work. She was living under financial distress and struggling to meet her everyday financial obligations.

    (b) She was offered a contract with a production house for the period between April 2021 and September 2021, and this involved her working and travelling around regional Victoria to different locations. Depending on the distance, this required her to stay overnight, or to travel long distances to and from location.

    (c) She was away working in Hesket Victoria (Mount Macedon ranges) in the days prior to 8 July 2021. She was working between 5am to 8pm and had no access to phone or internet when she was on set both due to poor reception and the production house not allowing phones or electrical devices on set.

    (d) She also has ongoing stomach issues which cause her sever pain due to a previous H-Pylori infection and stress related and acid reflux issues. This condition has been ongoing since 2018 and resulted in her having further tests in January 2021 as a result of the symptoms worsening. Her stress and anxiety impacts her day to day life including creating confusion and forgetfulness.

    (e) With her busy work schedule and exhaustion, she had confused the expiry dates of the visa, thinking it was in fact 18 July 2021 not 8 July 2021. She was also worried and stressed about my wife as a result of the allergic reactions to pain killers and medication she had been having in hospital after her episiotomy and delivery of my son.

    19. All the above-mentioned reasons led to the delay in lodging my parents’ visitor visa application before 8th July 2021.

    The legal test – ‘beyond control’

    20. 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.

    21. In my submission, based on the evidence before the Tribunal as to the confluence of events described above, the applicants were not the holders of a substantive visa when they applied for a tourist visa due to factors beyond their control. It is also submitted that whilst it may have been theoretically possible for the applicants to have applied for a tourist visa prior to the cessation of their previous tourist visa, in a practical or realistic sense they could not have done anything to prevent the events which occurred and prevented them from applying for a tourist visa while the holder of a substantive visa.

    22. The Tribunal is referred to the recent visitor visa case of Alharbi (Migration)[2022] AATA 1298 (4 May 2022),involving cl.600.223 and criterion 3004, in which the Tribunal remitted the decision to the Department. The case involves two applicant parents with no English language who rely on their daughter to apply for a further stay due to COVID travel restrictions and who misunderstood the expiry date of the previous visa. The case also related to an applicant having a need for ongoing medical treatment.

    Compelling reasons for grant of the visa

    23. It is understood that even if the Tribunal is satisfied that there were factors outside the applicants’ control preventing them from lodging an application whilst holding a substantive visa, Criterion 3004 (d) requires that there be compelling reasons for granting the visa.

    24. For all of the reasons submitted above, the delegate was satisfied that there are compelling reasons for grant of the visa. It is my submission that the Tribunal too can be satisfied that there are compelling reasons. Of course, the decision in Waensila v Minister3, means that the current circumstances of the applicants are also considered for Schedule 3 Criterion. I would request that the Tribunal consider the following additional matters:

    (a) In March 2022, my wife and I both started our PhD in the field of 3D printing of biomedical implants. We both have been offered Australian Government supported scholarship positions and are enrolled into a full-time study program. We are required to go in person to the University and CSIRO laboratories to perform our work. Additionally, I am self employed and running my own business on a full time basis in Australia. My sister is also a full-time primary teacher here in Australia (and part time model and actor) and my brother in law, has full time employment with Telstra.

    (b) If my parents were to exit Australia, it is not currently possible for me or my sister to go back to India to take care of my mother and at the same time, it will disrupt her ongoing mental health treatment. She is now under the care of a psychiatrist. The medical evidence supports that she will be aided by being surrounded by family. We do not have any immediate family back in India who can support and take care of my mother in our absence on a regular basis. So, it is of prime importance for my parents to stay here with my family temporarily until my mother’s treatment is completed and her mental health improves. Her mental health condition can worsen if she has to go back to India at this stage and this can have adverse effect on her treatment and consequently on our whole family.

    (c) While my parents are staying here with us in Australia, my mother is able to spend time with her grandson and that is also working as a therapy for her mental health. Spending time with the baby is also helping her in coping with anxiety and stress.

1. The Tribunal notes that the applicant had been granted a number of previous visas and therefore had experience in dealing with visa applications. According to Departmental records, the applicant was granted a Visitor (FA 600) visa on 1 February 2016 and arrived onshore on 13 March 2016 and departed on 7 May 2016. On 28 May 2018 the applicant was granted a Visitor (Sponsored Family Steam) (FA 600). The applicant did not travel to Australia on this visa. It ceased on 28 August 2018. On 22 May 2019 the applicant was granted another Visitor (Sponsored Family Steam) (FA 600). He arrived onshore on 4 July 2019. This visa ceased on 27 June 2020. On 1 March 2020 the applicant commenced a citizenship conferral application which remains undetermined. On 4 June 2020 the applicant applied for a waiver of the No Further Stay condition, which was granted on 11 June 2020. On 26 June 2020 the applicant applied for a Visitor (Tourist Stream) (Onshore) visa. He was granted a Bridging Visa A on 29 June 2020. The Visitor visa was granted on 8 January 2021 and ceased on 8 July 2021. This record indicates significant interaction with the migration system.

2. The Tribunal notes that it is clear from the Department website that a visitor visa must be applied for while an applicant has a substantive visa.[1]

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

3. Notwithstanding prior experience with visas and the information on the website, the Tribunal is satisfied that the applicant did not apply for the visitor visa during the term of his substantive visa because of factors beyond his control. The Tribunal has considered the judgments in Su v MIAC [2007] FMCA 318 and Liu v MIAC [2010] FMCA 60. Reasons for these findings are set out below.

4. Firstly, although the applicant had experience with the visa system, the Tribunal accepts the evidence of his son that he took care of all of the applications as his parents cannot speak or read English. This provides context for why the application was late on this occasion although prior applications had been lodged on time.

5. Secondly, the applicant and his wife could not obtain flights back to India in the months before visa expiry, due to unavailability of flights and border closures as a result of the COVID-19 pandemic. The decision of the applicant and his wife to apply for a visitor visa was also based on the fact that their medical conditions made it unsafe for them to fly, and they desired to remain in Australia to assist their son and daughter-in-law at the time of the birth of their first child. The Tribunal notes that Melbourne was in lockdown from 28 May 2021 to 10 June 2021. Their hometown in India, Chandigarh, was also in lockdown. There were no flights operating between April to June 2021, as verified by documents provided to the Tribunal. There was just one evacuation flight on 14 June but only from Sydney. Domestic travel was not permitted at that time.

6. Thirdly, the applicant’s wife, who had suffered anxiety and depression for some years as illustrated by medical documents from India, was in a particularly fragile mental state at the time of expiry of her previous visa, which may have explained why she did not take further steps to apply on time when her son was caught up with the early birth of his child. According to her son, the prolonged lockdown in Melbourne due to COVID-19, his wife suffering a miscarriage in September 2020, and problems in her later pregnancy had exacerbated the applicant’s condition. However, according to her son, it was the death of the his wife’s father in India on 26th April 2021 due to Covid-19, that was ‘the hay that broke the camel’s back’ and led to ‘a substantial worsening of her condition’. A death certificate for her father has been provided. The Tribunal accepts her son’s evidence that she was crippled by grief, shock and elevated anxiety, which is reasonable, considering that she would have been unable to return to India for the funeral. The Tribunal notes that she started counselling sessions in June 2021 and had therapy and medication since that time. The Tribunal notes also that she has been referred to a psychiatrist by her general practitioner and her counsellor. The Tribunal accepts the evidence that usually she would have asked her son to assist her when her visa was close to expiring but on this occasion she was not aware of the date due to deterioration of her mental health following the death of her father. Medical reports have been provided to corroborate the son’s evidence.

7. Fourthly, the applicant also suffered medical conditions which impacted on his ability to apply for his visa or remind his son or wife to apply for her visa, within the term of the previous substantive visa. Medical evidence has been provided that the applicant’s  lymphocyte count was elevated in September 2020 and he was referred for a CT scan of the chest and blood tests in October 2020. A blood report dated 11 November 2020 indicated presence of CLL phenotype was detected but the count did not meet the revised criterion for the treatment of Chronic lymphocytic leukemia (CLL) so he was requested to closely monitor the lymphocyte count and saw a haematologist in February 2021, September 2021 and January 2022. His lymphocyte count is elevated and the Tribunal accepts that he was pre-occupied with the potential risk of Chronic lymphocytic leukemia at the time of visa expiry as well as having prevailing hypertension, diabetes and anxiety as indicated in the medical reports. The Tribunal accepts that at the time he was also concerned with caring for his wife.

8. Fifthly, the Tribunal accepts that the applicant’s son did not lodge the applicant within the term of the previous visa because his wife, whose baby was due on 10 July 2021 had labour pains on 1 July 2021 and was hospitalised on 3 July 2021, when the baby was delivered. The Tribunal accepts on the medical evidence that she had assisted forceps delivery and an episiotomy with stitches. She had a lot of pain because of inability to take antibiotics and painkillers as a result of allergies (medical reports provided to corroborate this). She was also required to spend an additional day in hospital as the baby lost weight in hospital and was jaundiced. They were discharged on 8 July 2021. The Tribunal accepts the son’s evidence that he had begun to prepare the applications in ImmiAccount in late June 2021 but became focused on his wife and son’s health and wellbeing, managing hospital visits amidst the new COVID outbreak, whilst caring for his parents and he was unable to complete the application in time.

9. Sixthly, the Tribunal accepts that the applicant’s daughter could not have lodged the application for her parents as she was out of town in the Mount Macedon ranges in the days prior to 8 July 2021, working between 5am to 8pm without access to the internet. Internet correspondence demonstrating that she was working as an extra on the show “Survivors’ at the relevant time was provided. The Tribunal also accepts that the applicant’s daughter also suffers from medical conditions which impacted on her at the time.

10. 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.

11. In the case of Su[2], 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.

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

12. 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. 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.

13. In contrast to the facts in the case of Su[3] and Liu[4]in this case there was not simply misunderstanding or forgetfulness or reliance on the part of the applicant, instead for medical reasons as well as lack of language skills the applicant relied on his son as had always been the case, but as his son’s child was born prior to the expected date, he was unable to apply within time. In the days following the birth there were a number of medical issues affecting his son’s wife and child which resulted in him providing focus to them. Furthermore at the time of the application the applicant and his wife were suffering from a number of medical issues. The Tribunal has considered the particular circumstances (the applicant’s age, lack of English, medical condition, mental health of his wife and the early birth of his grandson). The Tribunal is satisfied 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 he was able to do so.[5] The Tribunal has taken into account that ordinarily he could have relied on his children for assistance but that extraordinary circumstances, the early birth of their grandchild and the unavailability of his daughter, meant that there were factors beyond his control in so relying and he could not take steps herself due to his medical condition.

    [3] Su v MIAC [2007] FMCA 318

    [4] Liu v MIAC [2010] FMCA 60

    [5] Su v MIAC [2007] FMCA 318

14. The Tribunal is satisfied therefore that the applicant was not the holder of a substantive visa at the time of application due to factors beyond his control.

15. The Tribunal is satisfied therefore that the applicant meets the requirements of criterion 3004(c).

    Are there compelling reasons for granting the visa (criterion 3004(d))?

16. The expression “compelling reasons” is not defined for the purpose of criterion 3004. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. In MZYPZ v MIAC [2012] FCA 478 at [10] – [12] Bromberg J summarised the principles saying that “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v MIMIA [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v MIMIA [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ). In MZYPZ Bromberg J noted that “[u]ltimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred”, at [12].

17. The Tribunal considers that there are compelling reasons, which are sufficiently powerful, to lead the Tribunal to make a positive finding in favour of waiving the required criteria (Babicci see above). The compelling reasons are the applicant’s medical issues, his wife’s mental health and the birth of the applicant’s grandchild, as well as the circumstances of the applicant’s son and his wife, who are both studying and working and cannot currently return their parents to India. It is important also that the applicant and his wife be able to visit their children in the future. The Tribunal notes also in this regard that the applicant and his wife were unable to depart at the time of expiry of their previous visas as it was not safe to fly at that stage with their medical issues and in any event, flights were unavailable. Furthermore, the Tribunal is compelled to grant the visa as the visa was applied for shortly after the expiry date, without any intentional breaches of the law. In these circumstances, the Tribunal is satisfied that it is compelled to exercise the discretion inferred (MZYPZ[6]) and that the circumstances are sufficiently powerful to lead the Tribunal to make a positive finding in favour (Babicci[7]) of granting the visa.

    [6] MZYPZ v MIAC [2012] FCA 478

    [7] Babicci v MIMIA [2005] FCAFC 77

18. The Tribunal is satisfied therefore that the applicant meets the requirement of criterion 3004(d).

    Has the applicant complied substantially with the conditions applicable to the last of any substantive visa and any applicable bridging visa (criterion 3004(e))?

19. The Tribunal is satisfied that, in the absence of any evidence to the contrary, the applicant has complied substantially with the conditions applicable to his last substantive visa. The Tribunal is satisfied that but for the global pandemic and the uncertainty surrounding travel, migration and border closures, the applicant had always intended to depart Australia.

20. The Tribunal finds that the applicant meets the requirements of 3004(e).

    Would the applicant 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; or would have satisfied the criteria when he or she last entered Australia unlawfully (criterion 3003(f))?

21. The Tribunal accepts that on the day he last held a substantive visa he would have satisfied the criteria for the visa and it was only the factors beyond his control which prevented grant of this visa.

22. The Tribunal finds that the applicant meets the requirements of 3004(f).

    Does the applicant intend to comply with any conditions of the visa (criterion 3004(g))?

23. The Tribunal is satisfied that the applicant intends to comply with conditions of his visa. Departmental records indicate that he has complied with previous conditions, which is given significant weight.

24. The Tribunal is satisfied therefore that the applicant meets 3004(g).

    Was the last visa or entry permit held (if any) 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))?

25. The Tribunal is satisfied that the applicant’s last 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.

26. The Tribunal is satisfied, therefore, that the applicant meets 3004(h).

    Conclusion

27. For the reasons the Tribunal has given above, the Tribunal is satisfied that the applicant meets the requirements of criterion 3004. 

28. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations.

    DECISION

29. 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

    Jane Marquard
    Member

    
    
    

    Attachment 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