Manjinder Kaur (Migration)

[2022] AATA 3575

Manjinder Kaur (Migration) [2022] AATA 3575 (5 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Manjinder Kaur

REPRESENTATIVE:  Mr GURPINDER CHIMA (MARN: 0962354)

CASE NUMBER:  2201381

HOME AFFAIRS REFERENCE(S):          BCC2021/2366513

MEMBER:Christine Cody

DATE:5 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 5 August 2022 at 5:43pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant was not the holder of a substantive visa at the time of application– applicant doesn’t meet the requirements of Schedule 3, criterion 3004(c) – circumstances were not beyond the applicant’s control –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3004

CASES
Liu v MIAC [2010] FMCA 60

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 20 January 2022 to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is 50 years of age and a citizen of India. She is in Australia and visiting her son, Harpreet Singh, and daughter-in-law, Kamaljeet Kaur, and their child. The applicant’s husband and other daughter reside in India.

3. The applicant applied for the visa on 7 December 2021.

4. The applicant last held a substantive Visitor (Tourist) (Subclass 600) visa which ceased on 4 December 2021.

5. The applicant has been represented by her registered migration agent throughout the visa application process with the Department and the Tribunal.

   The Department

6. The applicant lodged her current application for a Visitor (Tourist) (Subclass 600) visa via Form 1419 on 7 December 2021 confirming that her last substantive visa (a tourist visa) expired on 4 December 2021, and since that time she has been unlawfully present in Australia. It was stated that she was supposed to leave Australia before 4 December 2021, but due to the impact of the COVID-19 pandemic, the family was worried about her wellbeing while travelling back to India. She states that she now wants to stay in Australia until 7 December 2022. Her son will support her financially.

7. The applicant provided documents in support, including a copy of the passport identification pages for the applicant and for her son, the applicant’s identity card, evidence that her son was granted a Subclass 485 visa on 3 November 2021 valid until 3 November 2023, and a joint bank account statement for the applicant’s son and daughter-in-law showing they have over $10,000 in credit.

8. On 9 December 2021, the delegate sent a letter via email to the applicant’s agent requesting the applicant address in writing the reasons she did not hold a substantive visa at time of lodgement, whether there were factors outside her control preventing her from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa.[1]

   [1] As set out in the delegate’s decision record provided to the Tribunal by the applicant

9. There was no response provided. The Tribunal was informed that the email went to the agent’s junk mail folder and the Tribunal accepts that the lack of response to the Department was not intentional.

10. As noted above, on 20 January 2022 a delegate refused to grant the visa to the applicant. The delegate found that the applicant last held a substantive Subclass 600 visa which ceased on 4 December 2021. The applicant lodged this application for a Visitor (Tourist) (Subclass 600) visa via Form 1419 on 7 December 2021.[2] At the time of the application, she did not hold a substantive visa, and the delegate noted that, accordingly, the application was assessed against Schedule 3 criteria specified in cl 600.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The applicant’s reason for not travelling back to India due to the COVID-19 pandemic, was acknowledged. The delegate considered the applicant’s reasons for requesting a further stay to remain in Australia due to the COVID-19 pandemic, and the current travel restrictions in place and was satisfied there are compelling reasons for grant of the visa. The delegate considered, however, that there were no factors that prevented the applicant from lodging a further stay visa application within the validity of her substantive visa, stating that the onus is on the applicant to abide by their visa conditions and make appropriate arrangements to remain lawfully in Australia. The delegate did not accept that there were factors beyond the applicant’s control which prevented her from lodging the current Subclass 600 visa application while holding a substantive visa. The delegate was not satisfied that the applicant satisfied criterion 3004 under Schedule 3 and thus could not be satisfied the applicant met cl 600.223(2) of Schedule 2 to the Regulations.

    [2] Although the first page of the delegate’s decision record states that the visa application was lodged on 7 December 2021, on the third page it is incorrectly stated that the visa application was lodged on 4 December 2021 (while stating at the same time that the application was lodged when the applicant no longer held a substantive visa). Given that the visa application form is signed on 6 December 2021, the Tribunal accepts that it was an error when the delegate stated that the application was lodged on 4 December 2021; the Tribunal accepts it was lodged on 7 December 2021 and this was not disputed by the applicant.

11. This is an application for review of that decision.

    The Tribunal

12. The applicant provided the Tribunal with a copy of the delegate’s decision record. The Tribunal invited the applicant to attend a telephone hearing via MS teams (during the COVID-19 pandemic) and she was requested to advise if this was not suitable.  

13. The Tribunal received a hearing response, saying that the daughter-in-law will assist the applicant during the hearing as the daughter-in-law has been looking after the applicant. It is also stated that the applicant has been suffering from a continuous headache and often having fever due to her diabetes, which would impact her during the hearing.

14. The Tribunal also received a letter from the applicant’s son stating that his mother came to Australia on 1 February 2020, and after a few months she fell sick due to diabetes. She also had to undergo surgery on 9 October 2021. They were constantly stressed about her medical condition and did not lodge the application for a visitor visa extension on 4 December 2021 but they realised this the next day and acted immediately, with the application being sent to the Department on 7 December 2021. He requests that the Tribunal take into account his mother’s medical condition. She sees a GP on a regular basis and the doctor told her she needs a few more months to be fully recovered from her medical condition. Accordingly, they requested a 6-month stay which would be very beneficial to her health as she will then leave Australia and they will not have to worry about her health and wellbeing. They previously applied twice for a visa extension for the applicant due to the pandemic and her medical condition, before the expiry of her visas. It was only one day after the expiry on this occasion that they realised, noting that everyone in the family was very stressed and drained due to the medical condition and financial stress during this time. In addition, her son said his wife is suffering from arthritis since the birth of their child in 2020 which affected two of her fingers and she is still recovering from her health issues. It is submitted that these were circumstances beyond their control and they requested that a visitor visa be granted to the applicant.

15. A letter from the agent states that the medical conditions of the applicant and her daughter-in-law were not referred to in the visa application as they had not told the agent about these, because they were more worried about the applicant’s visa status. The agent submits that these should be considered as factors beyond control, and it is requested that the applicant is granted a visitor visa for 6 months to allow her to continue to follow-up her medical conditions with the GP and to be fully recovered before she leaves Australia.

16. A number of medical records for the applicant were provided, dated from May 2020 to early October 2021, referring to some bowel problems and tests thereafter occurring. Most of the tests showed no medical problems, although there was a reference to affected liver function. One record refers to a history of diabetes (with no significant concerns raised). In September 2021 a gastroscopy showed that there was no active Crohn’s disease, but a few polyps were found. On 10 September 2021 a doctor recommended a high-fibre diet, a follow-up with pathology results and ongoing care (the type not specified), stating that there is a concern that the applicant may have small bowel Crohn’s disease. In October 2021 she had an examination of her colon and oesophagoscopy and removal of polyps at a private hospital.

17. The applicant appeared before the Tribunal on 27 May 2022 to give evidence and present arguments by telephone. The Tribunal considered it was reasonable to conduct the hearing by telephone during the period of COVID-19 pandemic restrictions and the applicant agreed to the hearing taking place by telephone. The applicant’s daughter-in-law also gave evidence, and the agent provided submissions. An interpreter assisted.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. At the time the visa application was lodged, Class FA contained one subclass: Subclass 600 (Visitor), which operated 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.

20. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Regulations. Relevantly to this case, they include cl 600.223.

21. Clause 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 (emphasis added).

22. As noted above, the delegate found that the applicant did not satisfy the requirements of criterion 3004.

23. 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.

24. The issue in this case is whether the applicant meets the requirements of criterion 3004.

    Does the applicant meet the requirements of cl 600.223?

25. The applicant confirmed that she was in Australia at the time of the application for her current visa, noting she has been in Australia since 2020. The application form and the delegate’s decision record provided to the Tribunal by the applicant confirmed that she made an application for a visitor visa on 7 December 2021 and that her previous visitor visa ceased on 4 December 2021. The Tribunal accepts that there was only a gap of a few days, but the Tribunal has no discretion in this finding.

26. The Tribunal finds the applicant did not have a substantive visa at the time of her application and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations) visa in the Domestic Worker stream.

27. The applicant must meet the requirements of criterion 3001 and 3004.

    Does the applicant meet criterion 3001?

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

29. The evidence before the Tribunal is that the application was lodged on 7 December 2021 and the last day the applicant held a substantive visa was 4 December 2021. Therefore, her application was lodged within 28 days of the relevant day and she meets criterion 3001.

    Does the applicant meet criterion 3004?

30. The issue is whether the applicant satisfies criterion 3004 which contains a number of requirements, as discussed below.

31. 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 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 substantive visas and any subsequent bridging visa held by the applicant.

32. 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.

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

33. As noted above, the applicant’s most recent substantive visa was a visitor visa which expired on 4 December 2021. The applicant and her family members have claimed that this was an oversight, and that it occurred in the context of some medical conditions and stress. The Tribunal accepts that there was an oversight.

34. The applicant told the Tribunal that she had a bad headache and they took her to hospital and this created a lot of trouble for the family and she was sick and they were not able to send her back to India. The Tribunal put to her that it understands from her medical records (which end in October 2021) that the surgery/hospitalisation occurred in October 2021; but that her visa expired in December 2021. She said she is not educated so she doesn’t know about these things but her son and daughter-in-law were looking after those things. The Tribunal put to the applicant that the law says that a visa holder is responsible for knowing about their visa and how long it lasts. In response she said that she apologises, she is not educated and her son and daughter-in-law were busy. The Tribunal put to her that this may be the case but this doesn’t stop anyone from recording the expiry date and making an application before the expiry date. She said that she is diabetic and she takes medication and her blood sugar levels are severe. She hopes to get all the tests done and then return to India in 3 months’ time. The Tribunal asked why her son’s letter had requested she stay a further 6 months; she said it is because children worry. The Tribunal asked whether she has any further appointments, and her daughter-in-law said that she has an appointment on 25 June 2022 regarding inflammatory bowel disease for another endoscopy. She does not have any particular appointment about diabetes, but she has to regularly measure her blood sugar levels and go to the GP. 

35. Her daughter-in-law said that after her surgery, the applicant had another problem and she has diabetes. She confirmed that they forgot to lodge her visa application on time. The agent noted that they had forgotten to mention the daughter-in-law’s condition, who then confirmed to the Tribunal that after giving birth in February 2020, she developed rheumatic arthritis in December 2021. Her condition is getting worse and this also causes her more stress. The agent submitted that it was a combination of factors that led to them overlooking the expiry date of the visa.  

36. The Tribunal has considered all of the evidence and the submissions. As discussed at hearing, however, the wording of the requirement is clear. When the Tribunal put its concern that the evidence before it may not amount to factors beyond her control, the applicant said that at the time she had blood in her stools, and her family were stressed and looking after her.

37. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. The court in upholding the Tribunal’s decision, reiterated that the test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

38. The Tribunal accepts that the applicant is elderly, and that English is not her first language, and that she was relying upon her son/daughter-in-law, who overlooked the due date by 1 day, which led to the application being lodged 3 days late. It is prepared to accept that she may not be well educated, and it also accepts that she did not intentionally overstay and there is no evidence before it that she has previously breached immigration rules. The Tribunal accepts that the applicant’s daughter in-law developed arthritis in her finger which caused her distress, and that she is a mother to a young child. It accepts that the applicant has had some medical issues in Australia and that the applicant, and her family members, were worried about her health issues and had some stress.

1. Although there is no medical evidence provided of any concerns relating to the applicant’s health in December 2021, the Tribunal is prepared to accept, for the purposes of this decision, that she was still suffering symptoms such as pain and bowel issues and blood sugar issues around that time. The Tribunal has sympathy for the applicant, her family members and her circumstances. However, it is a requirement that the reason for the failure to lodge the visa application while she still had a substantive visa must be due to factors beyond her control. The evidence does not support a finding that the applicant was unable, due to factors outside her control, to apply for her visitor visa prior to the expiry of her substantive visa. The onus is on a visa holder to ensure they know the conditions of a visa and requirements for application of new visas. The applicant could have asked her son/daughter-in-law for the date of the expiry of her visa, she could have made a diary note of the date of the expiry of her visa, or asked her family members to make a reminder of the date. The Tribunal considers that, in her particular circumstances, the applicant could have made a fresh application before the expiry of her substantive visa. The Tribunal also considers that such actions were within the control of the applicant in a practical or realistic sense.

2. The Tribunal unfortunately does not have a discretion to find this criterion is met if it finds that the reason that the applicant was not the holder of a substantive visa at the time she applied for a visitor visa was not due to factors beyond her control.

3. For the reasons set out above, the Tribunal finds that the applicant does not meet the requirements of 3004(c).

4. As the Tribunal finds that the applicant does not meet the requirements of criterion 3004(c), it is not necessary to make findings as to whether the applicant would have met the other requirements of the criterion.

   Conclusion

5. For the reasons set out above, the Tribunal is not satisfied that the applicant meets the requirements of criterion 3004. As a result, she does not meet the requirements of cl 600.223.

   DECISION

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

   Christine Cody
   Member