MacLeod (Migration)

[2021] AATA 3555

MacLeod (Migration) [2021] AATA 3555 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rod William MacLeod

CASE NUMBER:  2016634

HOME AFFAIRS REFERENCE(S):          BCC2020/1384632

MEMBER:Louise Nicholls

DATE:17 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2021 at 9:49am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Tourist) – no substantive visa held because of circumstances beyond applicant’s control – intention to depart and flight booked for the day before previous visa ceased – COVID-19 travel restrictions – conflicting advice from department – possibility of applying for further visa before previous visa ceased – compelling reasons for granting visa – volunteer work with local communities – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3004(c)

CASES

Paduano v MIMIA (2005) 143 FCR 204
Plaintiff M64/2015 v MIBP [2015] HCA 50

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. The applicant is 43 years old and is a citizen of Canada. He last arrived in Australia as the holder of a Subclass 601 Electronic Travel Authority (ETA) on 16 December 2019.

2. He applied for a Visitor (Class FA) Subclass 600 visa on 6 April 2020.

3. On 28 October 2020 a delegate of the Minister for Home Affairs refused to grant the visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused the visa because the applicant did not meet cl.600.223 of the Migration Regulations 1994 (Cth) (the Regulations) as the applicant did not satisfy 3004 of Schedule 3 to the Regulations.

4. This is an application for review of that decision, and it was made on 14 November 2020. The applicant provided a copy of the delegate’s decision record with the application.

5. The applicant later provided several documents including

   ·            A copy of his Air New Zealand e-Ticket for a flight to New Zealand on 15 March 2020.

   ·            Bank statements.

   ·            Several references from persons who had contact with the applicant in Australia.

   ·            A video recording of a number of persons stating that they supported the applicant’s further stay in Australia.

   ·            Statistics on current COVID infections in Canada.

   ·            Photographs of a series of gardens in Queensland on which the applicant has given advice and provided permaculture assistance.

6. The applicant appeared before the Tribunal using Microsoft Teams video conference technology on 16 September 2020 to give evidence and present arguments. The Tribunal considered it was reasonable to conduct the hearing by video conference during the period of COVID 19 pandemic restrictions in September 2021 and the applicant agreed to the hearing taking place by video conference. The applicant gave evidence about his background and the requirements for the visa. The Tribunal considers he was a truthful witness who gave an honest and accurate account of his circumstances.

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

   CONSIDERATION

8. 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.

9. 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.

10. Cl.600.223 provides

    (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.

11. The delegate found that the applicant did not satisfy the requirements of criterion 3004.

12. Criterion 3004 provides

    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. 

13. The issue in the present case is whether the applicant meets the requirements of 3004.

    Background

14. The applicant was born in Calgary, Canada. His parents live in Canada and he has two sisters and one brother in Canada. He attended school in Canada and first came to Australia on a working holiday visa in 2001 and then returned to Canada after about 4 months.

15. He returned to Australia in 2018 and remained for about 10 months before visiting New Zealand and then returning to Australia for a number of months. He explained that he has travelled extensively around Australia during his visits.

16. Before his arrival in Australia in December 2019, the applicant was working for a local council in building maintenance in Victoria, British Columbia. He returned to Australia in December 2019 and has spent a large proportion of his time on the Sunshine Coast in Queensland.

17. He is very involved in permaculture and sustainable gardens and has helped many people in his local community learn to grow their own food and care for their gardens. He provided material showing the gardens he had worked on and the produce taken from those gardens.

18. He has supported himself in Australia from a combination of savings, back pay from his work in Canada and an inheritance. He told the Tribunal he lives very frugally and mainly spends money on his car registration and petrol and estimates he only spends about $3 a day on food. He also donates significant amounts of food to his friends and acquaintances.

19. He provided several references from persons in the Sunshine Coast area and it is clear they hold him in high regard for his friendship and his assistance in helping them with their gardens.

    Does the applicant meet the requirements of cl.600.223?

20. The evidence indicates and the applicant agreed that he was in Australia at the time of the application for the visitor visa on 6 April 2020 and that his previous ETA Subclass 601 visa had ceased on 16 March 2020.

21. Accordingly, the Tribunal finds the applicant did not have a substantive visa at the time of his application and the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations) visa in the Domestic Worker stream.

22. The applicant must meet the requirements of criterion 3001 and 3004. Criterion 3003 and 3005 are not relevant to this review.

    Does the applicant meet criterion 3001?

23. 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 cl.3001(2), that is, 28 days from the date that the applicant last held a substantive visa.

24. The evidence before the Tribunal is that the application was lodged on 6 April 2020 and the last day the applicant held a substantive visa was 16 March 2020. Therefore, his application was lodged within 28 days of the relevant day and he meets criterion 3001. He must also meet 3004.

    Does the applicant meet 3004?

25. The issue is whether the applicant satisfies criterion 3004 which is set out in full earlier in this decision. There are a number of distinct requirements.

26. Criterion 3004 of Schedule 3 to the Regulations requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his 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.

27. 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.

    Evidence at the hearing

28. The applicant told the Tribunal that his visit visa was due to cease on 16 March 2020 and he had intended to travel to New Zealand before his visa ceased. He provided a copy of his flight booking for the 15 March 2020. The Tribunal accepts the evidence that the applicant intended to visit New Zealand on 15 March 2020 before his visa was due to cease.

29. He explained that it was not his habit to listen to the news very much, but he heard in March 2020 that there was an infectious disease (COVID 19) having an impact on various countries. At the time he did not think that COVID 19 was a serious issue and thought the media were overstating the dangers. However, he had heard that New Zealand and Australia were considering restrictions on arrivals which would take place late in March 2020. He was very confused and tried to call his migration agent for advice, but she was not available at the time.

30. He called the Department and spoke on the telephone to several people but got conflicting advice about his options. He claimed that he was told he could apply for a visit visa, but it probably would not be granted, or he could apply for a bridging visa. He now wishes he had applied for a visit visa before his visa ceased. Instead he applied for, and was granted a Bridging Visa E. He later applied for a visit visa.

31. He stated that he has remained in Australia due to his concerns about COVID infections in North America and his wish to stay for the hearing of his review application.

32. When asked what compelling reasons there were for the grant of the visa, the applicant pointed to his volunteer work with local communities in helping people set up gardens and learning how to grow their own food in difficult times such as the current pandemic. He also stated if he returned to Canada now it would be difficult to find work, he has nowhere to live and it was approaching winter in Canada, a period of the year when the climate was very challenging. He wanted to be productive and help people in Australia to learn how to grow their own food.

    Was the applicant not the holder of a substantive visa because of factors beyond his control when he applied for a visitor visa?

33. In considering whether there are reasons which constitute 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.

34. 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:

35. 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.

36. The Tribunal notes that the applicant’s visa was due to cease on 16 March 2020 which was around the time when the Australian government had made announcements about the likely impact of COVID on travel to Australia. It is understandable that the applicant would have felt confused about his options. Without the impact of the COVID pandemic the applicant could have travelled to New Zealand, visited for a period of time and applied for a further visit visa for Australia.

37. The Tribunal does not doubt that he was given conflicting advice about his options at the time as there was some uncertainty and anxiety about the nature of the pandemic.  However, he could have applied for a further visit visa while he was a substantive visa holder and his failure to do so was a matter within his control. However, the Tribunal accepts he was in a difficult position. Travelling to New Zealand shortly before the restrictions on travel to Australia were implemented would have limited his options to return to Australia at that time even if he was granted another visa.

38. Notwithstanding the difficult position he was in, the Tribunal considers that the applicant’s failure to apply for the further visa while he was the holder of a substantive was not caused by a factor beyond his control. It was within the applicant's control to be aware of the Department's visa requirements and to ensure compliance with those requirements. Further there were no obstacles to him applying for the visa before the 16 March 2020 and he had experience of applying for Australian visas in the past.

39. The Tribunal accepts that the applicant did not have an intention to overstay or breach any conditions attached to his visa. If not for the impact of the COVID pandemic, the Tribunal considers the applicant would have departed Australia within the currency of his substantive visa. Further the Tribunal is satisfied that the applicant intended to comply with conditions which attached to his visa.

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

    Compelling reasons

41. As the Tribunal finds that the applicant does not meet the provisions of criterion 3004(c) it is not necessary in considering whether the applicant would have met the other requirements set out in that criterion.  

42. However, even if the Tribunal had found that the applicant was not a substantive visa holder because of factors beyond his control, which it does not, the Tribunal also does not consider there are compelling reasons for granting the visa[1].

    [1] Criterion 3004(d) of Schedule 3 to the Regulations.

43. The expression “compelling reasons” is not defined for these purposes. The ordinary meaning of “compelling” (to compel) may include ‘to urge irresistibly’ and to ‘bring about moral necessity’. To be ‘compelling’ the reasons in question must force or drive the decision-maker irresistibly to some end.[2] The word ‘compelling’ may include reasons which are forceful, involve moral necessity or are convincing, but does not of its own, necessarily require an involuntary element.[3]

    [2] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

    [3] Paduano v MIMIA (2005) 143 FCR 204 at [37].

44. The Tribunal accepts the applicant has, in a voluntary capacity, aided members of his community in producing sustainable food and learning about permaculture and the work has been valuable. It accepts he is well regarded in his community and he also appears to be unprepared to return to Canada at the present time due to current COVID infection rates, work and climate concerns. However, the Tribunal does not accept that these reasons are compelling reasons for granting the visa. These reasons do not force or drive the Tribunal irresistibly to the conclusion that the visa should be granted.

    Conclusion

45. For the above reasons the Tribunal is not satisfied that the visa applicant meets the requirements of cl.600.223.

    DECISION

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

    Louise Nicholls
    Senior Member