Hmouda (Migration)

[2022] AATA 626

Hmouda (Migration) [2022] AATA 626 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amer Hmouda

REPRESENTATIVE:  Ms Penny Dimopoulos

CASE NUMBER:  2002323

HOME AFFAIRS REFERENCE(S):          BCC2020/198276

MEMBER:Moira Brophy

DATE:4 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 04 March 2022 at 10:23am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of visa application – factors beyond the applicant's control – civil unrest in Lebanon – migration lawyer failed to submit extension application – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.223; Schedule 3 Criterion 3004

CASES

Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [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 4 February 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 January 2020. 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 Family 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 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223 because he was not satisfied the applicant satisfies the Schedule 3 requirements as set out in criterion 3004.

5. The Tribunal exercised its discretion to hold the hearing by way of a video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by way of a video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments

6. The applicant appeared before the Tribunal on 25 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   BACKGROUND

9. The applicant is a 33-year-old national of Lebanon who first arrived in Australia on 29 December 2018 as the holder of an FA-600 Visitor visa valid to 29 March 2019. He departed on 28 March 2019. He was granted another FA-600 visa on 27 November 2019 and arrived in Australia again on 3 December 2019 on a visa which expired on 3 January 2020.  A further application for FA 600 visa was lodged on 10 January 2020. 

10. The applicant has a wife and child born on 14 June 2019 who reside in Lebanon as does his parents five brothers and two sisters. He has an aunt and extended family members in Australia.

11. In support of this application the following documents were provided to the Tribunal:

    ·Receipt from Bardo Lawyers dated 6 December 2019

    ·Statutory declaration from Hanan El Mouslmani dated 18 February 2022

    ·Statutory declaration from Siham Allouche dated 18 February 2022

    ·Submission

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case whether the applicant Mr Amer Hmouda meets the requirements of cl. 600.223.

13. That clause provides:

    (1)If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not:

    (a)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    (b)  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:

    (i)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    (ii)  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.

14. Mr Hmouda was in Australia at the time he applied for the visa. He did not hold a substantive visa at that time. The last substantive visa he held was a FA600 Visitor – Tourist visa and so it was not one of the visas specified in cl. 600.223. The issue is therefore whether Mr Hmouda satisfies the Schedule 3 criteria. Mr Hmouda’s last substantive visa ceased on 3 January 2020 and he lodged this application on 10 January 2020. The relevant criterion in this case is therefore criterion 3004.

15. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that 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; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; 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.

16. The Tribunal must determine whether the applicant was not the holder of a valid visa because of circumstances beyond his control and whether he complied substantially with the conditions of his last substantive visa; the FA600 Visitor – Tourist visa granted on 27 November 2019.

17. In respect of the reasons, he had ceased to hold a substantive visa the applicant explains that he had sought the assistance of lawyers to lodge the application for him and they had failed to do so. He had not been able to contact them because they were closed for the Christmas period. It was the applicant’s submission that these were factors outside his control.

18. 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 Sch. 3 criterion 3004. While the application in that case was dismissed by the Court, the judgement 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.

19. The Tribunal notes that this is not the case involving error by the department or another agency about the visa validity date or any advice given.

20. The Tribunal accepts the applicant arrived in Australia on 3 December 2019 on a visa granted on 27 November 2019 that was valid to 3 January 2020. On 3 December 2019, that is the day of his arrival in Australia, the applicant visited a lawyer to commence the process of seeking an extension to his visa because he had a fear of returning to Lebanon due to the escalating civil unrest there. The Tribunal accepts the evidence given that the applicant paid the lawyer a sum of money to lodge an application for an extension and that he saw the lawyer again on 19 December 2020. The applicant has submitted that he relied on his agent to submit an application to ensure his status was regularised. The application for an extension was not lodged because the office of the migration agent was closed during the Christmas break. At the time of hearing the applicant told the Tribunal he became concerned when he did not hear from the migration lawyer but at no time did he contact the Department to discuss the matter with them.

21. The Tribunal finds that the applicant ceased to hold a substantive visa because of his inattention to the requirement to be a substantive visa holder and ensure applications for further visas were lodged before the expiry of the visa he was holding. While he submits the fact the failure to lodge was the fault of his lawyers this is a matter he should have taken care of, this was not beyond the visa applicant's control, in the Tribunal's view. On his own evidence he did not contact the Department at any time to apprise them of his situation. It was within the applicant's control to be aware of the department's visa requirements and to ensure compliance with those requirements.

22. The Tribunal accepts that the applicant was affected by his personal circumstances and fears at the relevant time, however, the Tribunal does not accept that the effect of this was such that he could not be expected to be aware of the length of time during which the initial visa was in effect.

23. This being the case, the applicant does not satisfy the provisions at item 3004(c) which apply here and cannot meet the prescribed criteria at cl. 600.223.

    DECISION

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

    Moira Brophy
    Member