Mile Thulasi Das (Migration)

[2022] AATA 4296

Mile Thulasi Das (Migration) [2022] AATA 4296 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bharath Mile Thulasi Das

REPRESENTATIVE:  Mr Yashpal Erda (MARN: 0963835)

CASE NUMBER:  2102462

HOME AFFAIRS REFERENCE(S):          BCC2020/1951080

MEMBER:Moira Brophy

DATE:8 September 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 08 September 2022 at 2:23pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa at time of application – Schedule 3 criteria – whether factors beyond applicant’s control – outbreak of the COVID pandemic – travel restrictions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004

CASES
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

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 9 February 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 21 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 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because he was not satisfied the applicant satisfies the Schedule 3 requirements as set out criterion 3004.

5. The applicant appeared before the Tribunal on 8 September 2022 to give evidence and present arguments.  

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case whether the applicant Mr Bharath Mile Thulasi Das meets the requirements of cl. 600.223.

9. That clause provides:

   (1)If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not:

   (a)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

   (b)  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:

   (i)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

   (ii)  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.

10. Mr Das was in Australia at the time he applied for the visa. He did not hold a substantive visa at that time. The last substantive visa he held was a Temporary Skilled Post Study Work (Subclass VC 485) visa and so it was not one of the visas specified in cl. 600.223. The issue is therefore whether Mr Das satisfies the Schedule 3 criteria. Mr Das’ last substantive visa ceased on 16 July 2020 and he lodged this application on 21 July 2020. The relevant criterion in this case is therefore criterion 3004.

11. Criterion 3004 of Schedule 3 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. 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.

12. The Tribunal must determine whether the applicant was not the holder of a valid visa because of circumstances beyond his control and whether he complied substantially with the conditions of his last substantive visa; the Subclass VC 485 granted on 16 July 2018.

13. In respect of the reasons, he had ceased to hold a substantive visa the applicant explained his intention was to leave Australia and return to India.  Because there had been a major outbreak of the Covid pandemic in India around this time and flights into the country were not allowed he had determined it was best to stay in Australia. Because it was still relatively early in the timeline of the pandemic there was a paucity of information available as to what people in his situation should do. He regularly checked the department website, and he engaged a migration agent to assist him. He was advised to apply for a Visitor visa. He provided evidence of his getting sick around this period which interrupted his ability to lodge his application and led to the late lodgment. Corroborative evidence has been provided by way of a medical certificate. He said he was very stressed and anxious at the time as his mother was alone in India. His only sister lives in Canada. They were concerned as to the effects of the pandemic in India and their fear for his mother given there were no family members there.

14. In considering whether these constituted 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. 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:

    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 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.

15. The Tribunal notes that this is not the case involving error by the department or another agency about the visa validity date or any advice given. The Tribunal finds that the applicant ceased to hold a substantive visa because of lack of attention to the requirement to be a substantive visa holder and ensure applications for further visas were lodged before the expiry of the visa he was holding. The applicant requests that the circumstances of he and his family at the time be considered. He also asks for the fact he immediately commenced the process to apply for a new visa once he realised, he was not going to be able to leave Australia to return to India be considered.  It was very important to him that it be recognized he had always endeavored to comply with the visa requirements. He was now being offered an opportunity to make application for a permanent visa and he was very conscious of not placing in jeopardy his chances of being granted another visa in the future.

16. The Tribunal is satisfied that the somewhat unusual circumstances of this case caused by the government imposed travel restrictions on leaving Australia and returning to India combined with the general fear and confusion during a pandemic especially given the conditions in India at the time are largely unforeseen circumstances that contributed significantly to the situation, such that the Tribunal is satisfied that the applicant was not a holder of a substantive visa on 21 July 2020, because of factors beyond his control.

17. 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

18. 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.

    Moira Brophy
    Member