Kaur (Migration)

[2022] AATA 2936

Kaur (Migration) [2022] AATA 2936 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Balwinder Kaur

CASE NUMBER:  2105361

HOME AFFAIRS REFERENCE(S):          BCC2021/249337

MEMBER:Catherine Carney-Orsborn

DATE:18 August 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 18 August 2022 at 10:53am

CATCHWORDS
MIGRATION – Visitor (Class FA) visitor – Subclass 600 (Visitor) – tourist stream – application made after last substantive visa ceased – factors beyond applicant’s control – COVID restrictions and care for pregnant daughter-in-law – no compelling reasons for granting visa – applicant departed Australia – visa can only be granted while applicant in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.223(2), 600.411, Schedule 3, criterion 3004

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 6 April 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 16 February 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 delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria in Schedule 3.

4. The applicant appeared before the Tribunal on 17 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter in law.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Relevantly to this matter cl 600.223 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, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

7. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

8. Does the applicant satisfy the relevant Schedule 3 criteria?

   Criterion 3004

9. Criterion 3004 applies to an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not subsequently been granted a substantive visa.

10. It requires the Tribunal to 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 entry permits, substantive visas and any subsequent bridging visa held by the applicant.

11. In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it 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 if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa 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.

12. The Tribunal has the Department file and Tribunal file before it.  It has the submissions provided to the Tribunal and Department from the applicant.  At hearing the applicant confirmed those written submissions.

13. It is not in dispute that the applicant’s last substantive visa ceased on 10 February 2021.  The application for a subsequent visitor visa was lodged onshore on 16 February 2021.

14. At the time of application, the applicant was not the holder of a substantive visa.

15. The applicant states that she lodged a late application due to the confusion around COVID and further that her daughter-in-law was suffering complications with her pregnancy and she needed to help her and look after another child of the family.

16. A letter from a GP was provided.  It was dated 3 February 2021.  The letter confirmed that the applicant’s daughter-in-law was suffering from complications and needed assistance with the care of her other child and housework.  The letter requested that the applicant be exempted from travel restrictions.  A letter from another treating doctor dated 10 January 2021 referred to the daughter-in-law needing help from the applicant.

17. At hearing the applicant reiterated that there was confusion with COVID and that she had to help her daughter-in-law.

18. The Tribunal accepts that there was concern and confusion around the time of COVID and the family was under stress due to the daughter-in-law’s pregnancy, however the doctor’s letters are dated 3 February 2021 and 10 January 2021.  This was before the applicant’s substantive visa expired.

19. The doctor’s letters indicate that the applicant and her son and daughter-in-law were on notice that something needed to be done to extend the applicant’s visa as the letters refer to the applicant’s stay in Australia being extended to assist the family.

20. By February 2021 procedures had been put in place and the applicant and her family would have been aware that they needed to contact the Department.  Unfortunately, the application was lodged only six days after the substantive visa expired. 

21. After considering all the above, including the daughter-in-law’s circumstances the Tribunal is satisfied that the applicant was dealing with factors beyond her control which resulted in the application being delayed.

22. There is nothing to indicate that the applicant has not complied with the conditions of previous visas for entry permits.

23. At the time of application there may have been compelling reasons for granting the visa however at today’s date the Tribunal is not aware of any circumstances which would be compelling reasons for granting the visa. Therefore, the applicant does not meet the criteria of 3004. 

24. For the above reasons, the applicant does not satisfy criterion 3004.

25. Information before the Tribunal and held on the Department databases indicates that the applicant departed Australia on 10 February 2022.

26. Cl.600.411 requires that where the applicant applied for her visa while in Australia the visa can only be granted if she is in Australia.

27. Department records indicate that the applicant has left Australia and does not have a visa to re-enter Australia. 

28. For the above reasons the Tribunal finds that the applicant cannot satisfy cl.600.411.

    DECISION

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

    Catherine Carney-Orsborn
    Member