Koshy George (Migration)

[2022] AATA 1826

Koshy George (Migration) [2022] AATA 1826 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Belwin George Koshy George

CASE NUMBER:  2113369

HOME AFFAIRS REFERENCE(S):          BCC2021/1632333

MEMBER:Antonio Dronjic

DATE:1 June 2022

PLACE OF DECISION:  Melbourne

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:

·cl 600.223 of Schedule 2 to the Regulations.

Statement made on 01 June 2022 at 2:27pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 60 (Visitor) – tourist stream – application made after last substantive visa ceased – factors beyond applicant’s control – severely disabled applicant’s reliance on brother – brother’s family responsibilities and wife’s work as COVID nurse – compelling reasons for grant of visa – applicant’s vulnerability – COVID-related travel restrictions – departure tickets now purchased – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3004(c), (d)

CASES
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v Minister for Immigration [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 14 September 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 20 August 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 delegate refused to grant the visa on the basis that the applicant did not satisfy Schedule 3 criterion 3004 for the purposes of meeting the requirements of cl 600.223.

3. The delegate found that the applicant last held a substantive visitor visa, Subclass 600, which ceased on 23 July 2021. As the applicant applied for a visitor visa that is subject to the current review on 20 August 2021, the applicant was assessed against Schedule 3 criteria, including relevantly Schedule 3 criterion 3004 of cl 600.223(2)(b).

4. The delegate was not satisfied that there were factors beyond the applicant’s control which prevented him from lodging the Subclass 600 visa application while holding a substantive visa.

5. The applicant applied to this Tribunal for review of the primary decision on 30 September 2021. With the review application, the applicant submitted:

   ·     A copy of the primary decision; and

   ·     Statement from her son, Mr Sherwin George dated 30 September 2021.

6. On 11 May 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 1 June 2022.

7. The applicant appeared before the Tribunal on 1 June 2022. As the applicant suffers from a severe Down Syndrome and is unable to communicate, his brother, Mr Sherwin George represented him in this proceeding.

8. Together with his mother, the applicant arrived in Australia on 14 August 2019. He was granted another visitors’ visa on 1 December 2020 and this visa ceased on 23 July 2021. His brother Sherwin applied for a visitor’s visa that is subject to the current review application on 20 August 2021 on his behalf.

9. Mr Sherwin George was the person handling his brother’s visa application and he conceded that he made a mistake in not applying for another visitor’s visa while his brother still held a substantive visa.

10. Mr Sherwin George confirmed in his evidence that he provided written statement to this Tribunal dated 30 September 2021. He reiterated that he made a mistake by believing that his brother’s visa would expire in August rather than in July 2021.  At the time he was looking after his three children, mother, and brother with severe disability. His wife, who is a registered nurse, was working in a COVID ward at the relevant time.

11. He further stated that his mother and brother will travel back to India on 6 July 2022 and that they have already purchased tickets.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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).

14. 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. These criteria are set out in Attachment A to this decision.

    Does the applicant satisfy the relevant Schedule 3 criteria?

    Criterion 3001

15. To satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in Attachment A to this decision.

16. Based on the evidence before it, the Tribunal finds that the applicant’s last substantive visa (Subclass 600) ceased on 23 July 2021. The application for the current visa was lodged with the Department on 20 August 2021. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Criterion 3003

17. Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa and, on 31 August 1994, was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

    Criterion 3004

18. 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.

19. 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.

20. 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.

21. The applicant ceased to hold a substantive visa on 23 July 2021. As his current visa application was lodged with the Department on 20 August 2021, the Tribunal finds that at the time of visa application, the applicant was not a holder of a substantive visa.

22. Based on the above findings, the applicant is required to satisfy criterion 3004 of Schedule 3. Paragraphs (a) and (b) of that criterion are alternatives. The Tribunal finds that paragraph 3004(a) applies in the present case because the applicant ceased to hold a substantive visa on or after 1 September 1994.

23. To satisfy criterion 3004 the applicant must therefore meet the cumulative requirements of 3004(c), (d), (e), (f), (g) and (h).

24. The Tribunal is satisfied that the applicant ceased to hold a substantive visa on or after 1 September 1994, and therefore the applicant meets the requirements of 3004 (a). The requirements of 3004 (b) are an alternative to 3004 (a). Therefore, the Tribunal finds the applicant meets the requirements of 3004 (a) and the requirements of (b) do not apply.

25. 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 Schedule 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.

26. The Tribunal has considered the explanation provided by the applicant’s brother that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control. The applicant is suffering from a severe Down Syndrome and is unable to speak. The Tribunal is satisfied that the applicant entrusted his brother to make the application on his behalf because he had no capacity to do so and because his brother spoke English and had the technological capacity and skill to make the application.

27. The Tribunal is satisfied that the applicant was not aware that his visitor’s visa expired on 23 July 2021 and that he relied on his brother to apply for the visa. At the time, the applicant’s brother, Mr Sherwin George was looking after his three children, mother, and brother with severe disability. Mr Sherwin George’s wife, who is a registered nurse, was working in a COVID ward at the relevant time.

28. The Tribunal is satisfied that the applicant’s brother’s situation in July and August 2021 prevented him from lodging the application on behalf of the applicant whilst the applicant was the holder of a substantive visa. The Tribunal is satisfied that these amount to circumstances beyond the control of the applicant. For these reasons the Tribunal finds that the applicant meets the requirements of 3004 (c).

29. The Tribunal accepts that the applicant’s stay beyond the cessation of his substantive visa was not due to any intention to overstay his visa but occurred because of COVID-19-related travel restrictions. The Tribunal accepts that the applicant is a person with severe Down Syndrome and as such more vulnerable to the effects of the pandemic. For all these reasons the Tribunal finds there are compelling reasons for the grant of the visa. Therefore, the Tribunal finds the applicant meets the requirements of 3004 (d).

30. Based on the information provided to the Tribunal by the applicant, the Tribunal is satisfied that the applicant has complied substantially with the conditions that apply or applied to the last substantive visa held by the applicant (other than the condition of which the applicant was in breach because the visa ceased to be in effect), and any subsequent bridging visa. Accordingly, the Tribunal finds the applicant meets the requirements of 3004 (e).

31. There is no evidence before the Tribunal that the applicant would not have been entitled to be granted a visa of the class applied for if the applicant had made the application for the visa on the day when the applicant last held a substantive visa. Accordingly, the Tribunal finds the applicant meets the requirements of 3004 (f).

32. Based on the statement provided to the Tribunal by the applicant’s brother, the Tribunal accepts that the applicant intends to comply with any conditions to which the visa would be subject if it is granted. Accordingly, the Tribunal finds the applicant meets the requirements of 3004 (g).

33. The Tribunal is satisfied that the last visa held by the applicant was not a transitional (temporary) visa, and therefore the requirements of 3004 (h) do not apply.

34. For all the above reasons the Tribunal is satisfied that the applicant meets the requirements of Schedule 3 criterion 3004.

    Criterion 3005

35. Criterion 3005 requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or regs 35AA, 42(1A) or 42(1C) of the Migration (1989) Regulations.

36. There is no evidence before the Tribunal that the applicant was previously been granted visa on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or regs 35AA, 42(1A) or 42(1C) of the Migration (1989) Regulations. Accordingly, the Tribunal is satisfied that the applicant satisfies criterion 3005 for the purposes of cl.600.223(2)(b).

37. The Tribunal is satisfied that the applicant satisfies Schedule 3 criterion 3001, 3003, 3004 and 3005 and therefore meets the requirements of cl.600.223(2)(b).

38. As the Tribunal finds that the applicant meets the requirements of cl.600.223(2)(a) and (b), it follows that the Tribunal is satisfied the applicant meets the requirements of cl.600.223.

39. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 600 visa.

    DECISION

40. 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:

    ·cl 600.223 of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    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.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted 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.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)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 a further entry permit, while the holder remained in Australia.

    3005     

    A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)this Schedule; or

    (b)Schedule 6 of the Migration (1993) Regulations; or

    (c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.