McClay (Migration)

McClay (Migration) [2022] AATA 1862 (26 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  George Alexander McClay
Hazel Kathleen McClay
REPRESENTATIVE:  John Crowder (MARN: 1467565)
CASE NUMBER:  2102290 and 2102287
HOME AFFAIRS REFERENCE(S):          BCC2020/1897987 and BCC2020/1898064
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:Member Linda Holub
DATE:26 May 2022
PLACE OF DECISION:  Sydney
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 26 May 2022 at 5:11pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – COVID19 pandemic flight cancellations – family mental health issues – factors beyond the applicant’s control – medical advice to not travel alone – compelling reasons – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 11 February 2021 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 14 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.
The delegate refused to grant the visa on the basis that the applicants did not meet cl 600.223 because the Delegate was not satisfied there were compelling factors beyond the applicants’ control which prevented them from lodging the current FA600 Visitor – Tourist stream application while holding a substantive visa. Therefore, the Delegate was not satisfied the applicants satisfy Schedule 3 criterion 3004.
The applicants appeared before the Tribunal on 9 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ daughter.
The applicant was represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The first named applicant was born in January 1936 in in the United Kingdom and is a citizen thereof. The applicant is retired and is married to the second named applicant. They share one daughter. The second named applicant was also born in the United Kingdom in October 1939 and is a UK citizen.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
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
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.
The applicants last held a substantive Visitor (Class FA) (Subclass 600) visa which ceased on 19 June 2020. The applicants then lodged applications for FA600 Visitor Tourist stream visas on 13 July 2020.
As the visa applications were made within 28 days of the relevant day, the applicants satisfy criterion 3001.
Criterion 3003
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
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.
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.
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.
At the time of applying, the applicants provided their reasons for further stay in their applications, stating their original flights were cancelled due to Covid-19 restrictions. They explained they have one daughter living in Melbourne and we wanted to stay with her and her husband as they have no family able to support them in the United Kingdom.
A letter was sent to the applicants on 23 November 2020 by the Department requesting they address in writing why they did not hold a substantive visa at time of lodgement, whether there were factors outside their control preventing them from lodging an application while holding a substantive visa, and whether there were any compelling reasons for the grant of the visa. As at the time of the delegate’s decision, no response was provided to the letter.
Submissions to the Tribunal – prior to hearing
A written statement from the applicants’ daughter dated 3 April 2022 was submitted to the Tribunal. It outlines that the applicants arrived in Melbourne 19 March 2020 with return flights booked. The next day they found themselves in the midst of a pandemic. It states, “it was not their intention to overlook the dates for the original visa update, this was a misunderstanding of a neighbour who had applied for them online”.
The statement also advises the applicants have flights booked to return to the UK with her on 24 September 2022 and that was the earliest date that they could secure three seats together.
The submission also advises the first named applicants’ condition had continued to decline since the application for review, and he has been advised his cognitive impairment has progressed and he has been diagnosed with Alzheimer’s. This is supported by the letter from the first named applicant’s geriatrician dated 31 March 2022.
A written statement from the applicants’ representative dated 1 May 2022 was also provided to the Tribunal. It states they had return flights booked to the United Kingdom on 4 May 2020, which were subsequently cancelled by Qantas.
The submission states the applicants relied on the assistance of their neighbour and friend in the United Kingdom with their visa matters. They were unaware that such assistance should not be obtained from someone who is untrained or unregistered to do so. The applicants were advised by their neighbour that their visas had been renewed and did not question this. It was not until they received the second email from the Department of Home Affairs that they realised there was a problem. Upon contacting the neighbour in the United Kingdom, it was realised the visas had not been renewed, and the friend had assumed the visas had been automatically renewed by the Department because of the border situation. The applicant’s daughter sought assistance with her parents’ applications and applied for a Bridging visa E to remain on shore lawfully which was subsequently granted.
The submission states that an application was lodged by the applicants’ daughter 13 July 2020. On 23 November 2020 the Department sent a request for further information for a Visitor (class FA) Visitor (Tourist) (subclass 600) visa application. This correspondence was inadvertently overlooked by the applicant’s daughter and the Department refused the application 11 February 2021.
The submission further states that the applicants have at all times relied upon the advice of others in relation to their visas, this reliance on the assistance of others has directly resulted in their current situation, and that the circumstances that led to their situation were beyond their control given their age and health conditions.
A letter from the first named applicant’s geriatrician dated 31 March 2022 was submitted to the Tribunal. The first named applicant was assessed by a neuropsychologist and diagnosed with changes consistent with Alzheimer’s Dementia and states he is seeing an oncologist regarding a newly diagnosed neuro endocrine tumour. It is stated by the doctor that the first named applicant requires assistance for any travel plans home as he is at risk of suffering an acute confusion state known as delirium with any travel, thus requiring he travels with someone who can keep him calm and assist in all travel planning. He has been advised by his doctor that he needs to travel with his daughter, who would be able to provide a calm environment and organise what is needed for the travel. The doctor further notes he has concerns about the first named applicant travelling alone or with his wife, whom the doctor believes would not be able to manage travelling alone with him as well as the stress of travelling.
The Tribunal also received a medical report from the Melbourne Oncology Group dated 1 April 2022. The report states the first named applicant is a frail 86-year-old who has a pancreatic neuro-endocrine carcinoma which was first diagnosed in 2016, the applicant also has a history of atrial fibrillation and hypertension for which he is medicated.
Oral evidence provided at hearing
At the commencement of the hearing the Tribunal was told that given the age and condition of the applicants they would find it difficult to provide evidence and therefore the Tribunal agreed with their daughter and her husband responding to the Tribunal’s questions.
The applicant’s daughter explained to the Tribunal that she is their only child and lives in Australia and therefore the applicants are assisted in various matters by a neighbour in the UK. The Tribunal was told the neighbour was monitoring the validity their visas as the couple have no family in the UK. She stated that when she contacted him about whether the visas had been renewed, she was told they were. She told the Tribunal that she later understood that this advice was an assumption based on news reports regarding visas being automatically renewed after the Covid-19 pandemic started and Australia closed its borders. She stated that it was a very big lesson for her and a very concerning one when she discovered they had not been automatically renewed.
The Tribunal explained to the parties that it was unclear why, given the applicants were in Australia with her, she did not proactively monitor their visa status. The applicant’s daughter responded that the Covid-19 pandemic started just after the applicants arrived in Australia. She stated that she and her husband run a large charity and they were dealing with multiple issues at that time. In addition, she stated that was dealing with health issues of both applicants and her daughter had some health issues at around that time. She stated that the family had three generations in the home dealing with multiple concerns. She stated that the applicants’ neighbour offered to check on her parent’s visa and she decided to accept the offer because it meant that was one less thing she personally did not need to attend to. She stated that she learnt a very big lesson that the family needs to take responsibility for their welfare.
The applicant’s daughter explained that she does not want them to travel alone and referred to the medical evidence provided in relation to the health of the first named applicant. When asked why the applicants were not intending to depart until September, she explained that she had used Qantas frequent flyer points to cover the cost of the flights and because the applicants cannot afford to pay for them and they want to use frequent flyer points for the return flights. She explained the first date they could get three seats together was on 24 September 2022. Reference was made to the timing of the applicants receiving Covid-19 vaccine boosters.
The Tribunal noted that the applicant’s daughter was dealing with a number of additional pressures at the time that her parents’ visas were due to cease but referred to the fact that they had travelled to Australia on numerous occasions previously and would have been familiar with the requirements in relation to visa validity. She responded that their neighbour had always taken responsibility for their visa applications. She stated that she called the Department as soon as she found out what happened and applied for a Bridging visa. She stated navigating the Department’s application processes and found it was not easy which is why she decided to engage their migration representative.
Oral submissions made by the migration representative
The applicant’s migration representative stated that their submissions referred to the fact that they are not contesting that a breach did occur. He stated that what they are attempting to argue is that neither of the applicants could have an impact on the process. He stated they did not understand the issues that had arisen with their visas because they relied on someone in the UK who had lodged the initial application. He referred to the distance between UK and Australia and that neither applicant was directly in contact with the neighbour given their limited ability to use IT. He stated that the health of the first named applicant also impacted on his ability to understand the situation. He referred to the applicants’ daughter’s reliance on the neighbour which was based on trust. He stated the applicants arrived just about the time the borders closed which added further confusion and no one knew how long it would last.
In relation to the applicants’ return flight date the migration representative referred to the need for them to have their fourth vaccine booster and the medical advice that they should not travel alone. He stated that their daughter needs t accompany them and repeated what the Tribunal had been told about the availability of seating for the three of them on a flight not being available in the light of their need to utilise frequent flyer points. He stated they are not returning in September to deliberately extend their stay in Australia
The Tribunal noted that it had not been provided with evidence of the flight bookings.
The Tribunal also referred to the fact that no evidence had been provided regarding the daughter’s involvement in a church and a charity, the fact of her significant number of engagements at the time and the other health issues she had referred to which impinged on the family at that time. It was agreed that further evidence would be submitted for the Tribunal’s consideration by close of business on 23 May 2022.
The migration representative told the Tribunal that even though the applicant’s daughter had overlooked the request from the Department to provide further information, it is his contention that it was not in the control of the applicants themselves that they did not hold a substantive visa and he requested some compassionate consideration of this.
Post hearing submissions
In a letter dated 20 May 2022 the following submissions were made:
·the applicants have planned to return to the United Kingdom with their daughter accompanying them.
·they have no adverse migration history.
·the Australian border was closed one day after their arrival in Australia and their return flight to the UK was cancelled by Qantas and it was not possible to get an indication about a potential return date.
·Mr McClay is suffering poor health and has been in decline since his arrival. His doctors have advised that he and his wife would be unable to travel alone and require the assistance of their daughter.
·the family used Qantas points to purchase the tickets and they have now been able to secure confirmed seats on 24 September 2022 (evidence provided).
·the applicants are 86 and 82 years of age. Evidence was provided from their GP explaining their health conditions and their reliance on their daughter. In addition, neither applicant has the technical knowledge or capacity to send or receive emails or navigate the complex process of visa applications.
·the applicant’s daughter’s failure to respond to the Department’s adverse information was as a result of a number of unfortunate and tragic personal circumstances. In addition to some of her own mental health that she was dealing with and apart from attending to her father’s declining health she had also been assisting her daughter through her own difficulties having been diagnosed with Anorexia Nervosa. Her other daughter was also experiencing mental health issues. Correspondence from a registered psychologist/psychotherapist, a clinical psychologist and a consultant psychiatrist were provided in support of these claims.
·at the same time as these difficult and traumatic family circumstances were occurring, the applicant’s daughter and her husband as senior pastors of the Bayside Church were dealing with the complexities of the Covid-19 pandemic restrictions including the implications of the restrictions on staff and their congregation. They are also both advocates against the death penalty and evidence was provided of their work in this area as well as the work of the Bayside Church.
Findings
The applicants last held substantive FA-600 visas which ceased 19 June 2020.They lodged the application for an FA600 Visitor Tourist stream visa via form 1419 on 13 July 2020. The application was refused by the Department 11 February 2021.
Having considered the oral and extensive written evidence provided, the Tribunal accepts that the applicants were not able to handle their migration applications on their own given their ages, their health and lack of technical knowledge and as a consequence they required assistance from their daughter. In evidence before the Tribunal, she acknowledged that she did not handle the applications in a timely manner and laid out the reasons for this at hearing and subsequently provided evidence of the multiple situations she was dealing with at the same time. On the evidence, the Tribunal accepts that there were factors beyond the applicants’ control which resulted in them not holding a substantive visa at the time of application.

In the light of the medical evidence regarding the first named applicant, the Tribunal is satisfied there are compelling reasons for granting the visa to him and given the age of the second named applicant also to her. That will enable them to return to the UK together accompanied by their daughter in September 2022.
There is no evidence before the Tribunal that the applicants have not substantially complied with the conditions of their previous visas and the Tribunal is satisfied that on the basis of their past compliance, they intend to comply with visa conditions.
For the above reasons, the applicants satisfy criterion 3004 for the purposes of cl 600.223.
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
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.
Linda Holub
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.

[2022] AATA 1862

26 May 2022

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