Mahire (Migration)

[2022] AATA 1640

Mahire (Migration) [2022] AATA 1640 (23 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jasmine Jayawant Rao Mahire

REPRESENTATIVE:  Mrs Kusum Virjbhai Vaghela (MARN: 0426308)

CASE NUMBER:  2100588

HOME AFFAIRS REFERENCE(S):          BCC2020/1853670

MEMBER:Wendy Banfield

DATE:23 March 2022

PLACE OF DECISION:  Canberra

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

Statement made on 23 March 2022 at 12:58pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant had left Australia and was currently residing in India – she will not be onshore at the relevant time –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.223, 600.411

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 13 January 2021 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 2 July 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 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 600.411, which requires the visa applicant to be in Australia at the time of the grant if the visa applicant was in Australia at the time of application.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because Schedule 3 criteria 3004 had not been satisfied. Criteria 3004 required the applicant to provide satisfactory evidence to demonstrate that she was not the holder of a substantive visa because of factors beyond her control.

5. The applicant appeared before the Tribunal on 21 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

7. Prior to the hearing, the applicant had submitted evidence in support of the application for review.

   ·     The Department of Home Affairs (the Department) notification and decision record dated13 January 2021.

   ·     Email dated 3 September 2021 with travel itinerary advising the Tribunal that the applicant would be departing from Australia the next day, on 4 Septembers 2021.

   ·     Written statement of Jayawant Rao Shivaji Mahire dated 11 March 2022.

   ·     Written statement of the applicant Jasmine Jayawant Rao Mahire dated 11 March 2022.

   ·     Representative’s written submissions dated 12 and 21 March 2022.

   ·     Application for a Visitor visa submitted by Jayawant Rao Shivaji Mahire and including the applicant as travelling companion.

   ·     Medical evidence from India and Australia regarding Jayawant Rao Shivaji Mahire’s eye condition.

   ·     Representative’s post-hearing submission received on 21 March 2022.

8. The Tribunal also considered the evidence provided to the Department at the time of application.

   The hearing

9. The applicant confirmed she had left Australia and was currently residing in India. She said she had to depart to attend to an important personal matter. The applicant explained that she and her husband had visited Australia for their granddaughter’s birthday and only intended to stay for six weeks but were affected by border closures during the COVID-19 pandemic. The applicant explained the circumstances that led to her husband applying for another Visitor visa, but she did not. The evidence was that this was a mistake that occurred because the applicant’s husband filled out his application and included the applicant, his wife as his travel companion. Due to poor eyesight, the applicant’s husband had believed it was a joint application because he was including the details about his spouse. When the applicant later learnt she needed to complete her own new visa application she did so but was no longer holding a substantive visa.

10. The Tribunal explained to the applicant that the issue in her case now was the fact she had applied for the visa onshore but has now left Australia which means she will not be onshore at the relevant time. The Tribunal advised the applicant she may have to apply for a new Visitor visa offshore. The applicant was concerned about the visa refusal for the reasons stated by the delegate, particularly because the applicant and her husband have adult daughters and grandchildren in Australia that they wish to visit in future. The representative advised the Tribunal the applicant had been unable to return to Australia due to travel restrictions which was effectively a travel embargo.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the case at the time of application was whether the applicant met Schedule 3 criteria 3004 as required by cl 600.223 Criteria 3004 required the applicant to provide satisfactory evidence to demonstrate that she was not the holder of a substantive visa because of factors beyond her control and that there were compelling reasons for the grant of the visa.

13. In the decision record, the delegate provided the following reasons:

    The applicant last held a substantive FA 600 Visitor visa which ceased on 06 June 2020. The applicant lodged this application for a FA600 Visitor- Tourist Stream visa via form 1419 on 02 July 2020 stating their reasons for further stay as “With the current situation with the flights & atmosphere in our home country due to the pandemic, we feel we are safer here with my daughter, son in law & grandchild”. At the time of lodgement of the application the client did not hold a substantive visa. This application has therefore been assessed against Schedule 3 criteria specified in sub-regulation 600.223(2)(b).

    On 17 November 2020 a letter was sent via email to the applicant requesting they address in writing 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. As this letter was sent by email, it was taken to have been received by the applicant on 17 November 2020.

    On the 23 November 2020 a statement was provided by the applicant in support of her
    application. In the statement, the applicant writes: “We travelled to Australia to visit our
    daughters, son in law and grandchild” and “Once we were in Australia, news of the global pandemic resulted in complete lockdown, with all traveling being ceased and the borders being closed”. On the 24 May 2020, a new FA 600 Visitor Visa application was lodged under the name of the applicants Spouse, with the applicants name listed on this new application under the “details for partner” section on the application form. The applicant writes: “The visa application contained a separate section to enter in the details of a partner, which we mistakenly assumed as resulting in a joint application. Were it not for the misinterpretation, I would have been on a Visitor (Tourist) (Subclass 600) visa at the time of applying for a new Visitor (Tourist) (Subclass 600) visa”.

    The applicant stated the reasons for requesting an extension are: “Visit Family”. The current covid 19 situation in Australia, which has prevented the applicant from departing Australia, was also taken into consideration when considering if the applicant had compelling reasons for the grant of the FA 600 Visitor Visa.

    After considering all available information, I am not satisfied there were factors beyond the applicant’s control which prevented them from lodging the current FA600 Visitor-Tourist Stream application while holding a substantive visa. I am satisfied, however, that the applicant has demonstrated that there are compelling reasons for the grant of the visa.

14. Based on the applicant’s documentary evidence and submissions at the hearing, the Tribunal was satisfied the applicant had demonstrated there were factors beyond her control that prevented her lodging a FA600 Visitor-Tourist Stream application while holding a substantive visa. The Tribunal agreed with the delegate that the applicant demonstrated there are compelling reasons for the grant of the visa. The Tribunal considered that in the circumstances, Schedule 3 criteria 3004 had been met.

15. As well as the Schedule 3 criteria, the Tribunal had to consider the circumstances applicable to the grant of the visa as required by criteria 600.4. At the time of application on 2 July 2020, the visa applicant was in Australia but is currently not in Australia. The applicant’s representative made the following submission after the Tribunal hearing:

    The review applicant was in Australia when she applied for visitor visa application by post on 2/07/2020. The applicant had to travel back to India due to some urgency on 4/09/2021. The review applicant is currently residing in India. Pursuant to Clause 600.221 of the Migration regulations, the applicant can either intend to visit Australia or remain in Australia. The applicant can be either in Australia or offshore at the time decision to fulfil the requirements of Clause 600.221.

    Please set aside the decision of 13/01/2021 of Home Affairs and remit this matter back to Home Affairs to reconsider as applicant fulfills the requirements of 600.221.

16. Clause 600.221 applies specifically to the Tourist Visitor stream. There are other criteria of general application including cl. 600.411. Clause 600.411 states that if the applicant is in Australia at the time of application, the applicant must be in Australia at the time of [visa] grant. As the applicant is not currently in Australia, cl 600.411 has not been satisfied.

17. 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.

    
    

    DECISION

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

    Wendy Banfield
    Member