Kumar (Migration)

[2024] AATA 2862

Kumar (Migration) [2024] AATA 2862 (2 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kuldeep Kumar

CASE NUMBER:  2308351

HOME AFFAIRS REFERENCE(S):          BCC2023/2724134

MEMBER:Meena Sripathy

DATE:2 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2024 at 3:44pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – factors beyond the applicant’s control – compelling reasons – illness preventing departure – all immediate family in Australia – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criteria 3001-3004

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 8 June 2023 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 15 May 2023. 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 that the applicant did not meet cl 600.223 because the applicant was not the holder of a substantive visa at the time of application and the delegate was not satisfied that there were factors beyond his control which prevented him from lodging the application while holding a substantive visa, or that there were compelling reasons for the grant of the visa and therefore did not meet Schedule 3 criteria 3004.

4. The applicant appeared before the Tribunal by video hearing on 1 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review by his daughter.

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. These criteria are set out in the attachment to this decision.

   Does the applicant satisfy the relevant Schedule 3 criteria?

   Criterion 3001

8. In order 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 the attachment to this decision.

9. In this case the relevant day, being the last day the applicant held a substantive visa, was 11 May 2023. The present application was lodged on 15 May 2023. 

10. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Criterion 3003

11. 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

12. 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.

13. 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.

14. 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.

15. On 25 May 2023, the Department sent the applicant a letter via email requesting they address the reasons they did not hold a substantive visa at time of lodgement, whether there were factors outside their control preventing them from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa.

16. On 25 May 2023 the applicant’s representative provided a response claiming the applicant was severely ill and almost forgot about his visa expiry date. They further stated the applicant could not travel back to their native country due to their medical situation. They attached the medical receipts as evidence to support their claim.  Having considered the applicant’s reasons for requesting a further stay to remain in Australia, the delegate was not satisfied there were compelling reasons for the grant of a visa. The delegate was of the view that there were no factors which prevented the applicant from lodging their application within the validity of the substantive visa. Therefore, the delegate was not satisfied there were

    factors beyond the applicant’s control which prevented them from lodging the current Visitor
    (Tourist) (subclass 600) visa application while holding a substantive visa or that there are compelling reasons for the grant of the visa and concluded that the applicant did not satisfy Schedule 3 criterion 3004.

    Evidence before the Tribunal

17. On 23 July 2024 the Tribunal received the following documents in support of the review application: Copies of submissions made to the Department on 15 May and 23 May 2023 addressing the schedule 3 criteria, factors beyond the applicant’s control and compelling reasons for the grant of the visa; various receipts for fixed deposits with UCO Bank dated 2022-2023; Medical documents relating to a GP consultation on 13 May 2023; applicant’s Indian ID and Passport and Indian tax return acknowledgements for 2021-2022 and 2022-2023.

    Tribunal hearing

18. At the hearing the applicant told the Tribunal he was living in Melbourne with his brother and his (the applicant’s) wife. His wife has been in Australia for the last two years or so.  He also has a daughter currently living in Melbourne, and a son who is living in Adelaide.  His daughter was studying and recently completed a course. She was living in Adelaide but is now in Melbourne with them.  She is applying for a further student visa.  His son was also studying and is applying for a Partner visa.  The applicant has another brother who lives in Victoria, and his parents are also presently in Australia on visitor visas, since the last 3-4 months. 

19. Apart from these family members, he has one brother and two sisters residing in India. 

20. The applicant confirmed his recent migration history. He last arrived in Australia on 27 December 2019 and has been here continuously since then. He confirmed that he applied for and was granted further visitor visas on 13 November 2020, 24 May 2021 and 11 November 2022, the last visa was valid until 11 May 2023.  The applicant acknowledged that he did not lodge the present application until 15 May 2023.  The Tribunal asked why he lodged the application after the expiry of his visa.  He said he forgot the visa expiry date.  He was ill around that time, with a fever and a cough.  He went to visit the GP and the GP asked him for his visa status in the context of ascertaining whether he had health insurance.  It was then he realised his visa had expired.  The Tribunal noted he provided a receipt for his visit to the GP and this indicated a visit date of 15 May 2023.  He confirmed that this is what triggered him to lodge the visa application.

21. The Tribunal asked why he had not attended to applying for the visa prior to the expiry. He said he had it in his mind that the visa would expire around May, and he was thinking of leaving before that time. But when he realised, he had missed the date he became concerned about being blamed by his family for being sent back to India and he did not want to jeopardise his family.  The Tribunal asked him to explain this further.  He said he did not think he would be allowed back to Australia if he left, and all of his family is here. 

22. The Tribunal noted that at the time of making the application his then agent made a submission explaining the reason for the late lodgement was because he forgot the expiry date and was also unwell and that he was making the application to allow time to get better and then he will leave.  It noted that he asked for a period of three months – to July 2023.  This time has well and truly passed, and he is still here.  The Tribunal asked the applicant why he applied for this visa.  He said he applied because he had forgotten the expiry date and did not want to go back with a bad visa history. 

23. The Tribunal explained that it must be satisfied there is a compelling reason (now) to grant him the visa and asked what he wanted the Tribunal to consider.   He said he should be granted the visa because he had no bad intention to stay here. His whole family is here, and he did not want to do anything which jeopardised his chance to see his family.

24. The Tribunal asked how he is managing financially here.  He said he has a business in India, and workers there.  The shop is running and generating income.  When asked if he receives that money here, he said he does not.  His brother and children support him here. The money from the business is invested in the business there.

25. The Tribunal put to him its concerns: that he has been here continuously since December 2019, all of his immediate family members are here and he does not appear to have much incentive to return to India. It explained that the reason given for lodging the application late (that he forgot) does not appear to be beyond his control and it may not be satisfied there are compelling reasons to grant the visa now. In response he stated that when he came previously in December 2019, the coronavirus pandemic happened, and he was granted several visas on that basis. Then the last one expired and he forgot the date.

26. The Tribunal put to him its concern that he has no incentives to depart and it may not be satisfied he will abide by conditions if granted a visa.  He responded by saying that all of his family are here but his business is there. He does not want to jeopardise his visa history and thought he won’t get a visa again and he lodged the application, on advice he received, that he should explain why the visa expired. The Tribunal asked why he did not depart after his visa expired. He said he did not know he could do so.

27. When asked what plan he has if granted the visa he said he would plan to depart in December when his parents will be leaving.  He and his wife have a 25^th wedding anniversary in December and he would like to celebrate with his children here. The Tribunal asked how it can be satisfied he would depart given he is still here since lodging the application and saying he would leave earlier. He repeated that he made a mistake and wants everything to return to normal.

28. The applicant indicated he had no further evidence to provide. He has explained everything he wanted to say.

    Consideration of criterion 3004

29. As indicated above, criterion 3004 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.  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.

30. On the evidence before the Tribunal, the applicant’s last substantive visa ceased on 11 May 2023. The present application was made on 15 May 2023, after the expiry of his last visa.

31. The Tribunal has considered the evidence and submissions provided by the applicant.  The application was made several days after the expiry of the applicant’s substantive visa.  He explained to the Department and repeated to the Tribunal that the reason his application was lodged after the expiry of the last visa was because he forgot the expiry date. The Tribunal accepts the applicant has been consistent and candid in his explanation for the late lodgement. He provided further explanation as to how he came to realise his error, when he attended the GP on 15 May 2023 and was asked about his visa status.  On realising this he lodged the present application. Regarding his illness at the time, he referred to having a fever and COVID- like symptoms although he did not have COVID at the time. Having regard to his explanation of having forgotten the expiry date, and circumstances of his illness, which on the evidence, does not appear to be of a particularly serious nature, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa because of factors beyond his control. 

32. The Tribunal has also considered whether there are compelling reasons for granting the visa at the time of the Tribunal’s decision. The applicant has not put forward reasons which the Tribunal finds compelling within the ordinary meaning of that term which includes ‘to urge irresistibly’ and to ‘bring about moral necessity’. There is no specified meaning of this term as it appears in this criterion in the Migration Act or Regulations. The Tribunal understands from the applicant’s evidence that he lodged the application, on advice he received, so that he would not have an unfavourable visa history for future visits. Neither the wisdom nor logic of this is apparent in the circumstances where he did not hold a substantive visa for reasons beyond his control and does not meet all the requirements of the applicable schedule 3 criteria. The Tribunal is prepared to accept the applicant was following advice given to him at the time, albeit poor advice, but does not find this a compelling reason to grant the visa. It also takes into consideration the submission made at the time of lodgement that he was unwell and sought the visa for a short period until he was well enough and would depart, and yet he has not since departed more than 14 months later. The Tribunal does not accept that his rationale of having a favourable visa history in this case is compelling.

33. The Tribunal also has some concern about the applicant’s incentives to depart Australia at the expiry of the visa period, and therefore compliance with visa conditions. All of his immediate family are in Australia, and he has now been living here continuously since December 2019.  Although he has a business in India, the fact he has been able to stay continuously in Australia since 2019 suggests his presence is not required there for the business. 

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

35. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl 600.223.

36. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed.

    Future visitor visa application

37. It is open to the applicant to depart Australia and make a fresh application for a Visitor via from offshore if he wishes to return.  Any future application will be considered on the evidence and circumstances at that point in time.  In the context of a future application, the circumstances of his otherwise compliant visa history should hopefully be given some weight.   The Tribunal finds the applicant to be a credible and honest witness, who appears to have been poorly advised in respect of lodging and pursuing the present application.

    DECISION

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

    Meena Sripathy
    Senior Member