Norton (Migration)

[2024] AATA 1449

Norton (Migration) [2024] AATA 1449 (15 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elizabeth Emilie Norton

REPRESENTATIVE:  Ms Carina Ford

CASE NUMBER:  2300483

HOME AFFAIRS REFERENCE(S):          BCC2022/3910589

MEMBER:Alison Murphy

DATE:15 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·cl 600.223 of Schedule 2 to the Regulations

Statement made on 15 April 2024 at 4:28pm

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 – daughter’s medical episodes – compelling reasons for granting the visa – substantial compliance with previously held visa – intention to comply with future conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004

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

2. The applicant applied for the visa on 20 September 2022. The delegate refused to grant the visa on 11 January 2023. 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 delegate made the decision on the basis that the applicant did not meet the criteria set out in cl 600.223, because she did not meet the Schedule 3 criteria 3004. This was on the basis that the applicant did not hold a substantive visa at the time the visa application was made and the delegate was not satisfied that this was because of factors beyond her control.

4. On 22 March 2024 the Tribunal received extensive new documentation in the review, including medical information, financial information and nine witness statements. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATON OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl 600.223. This clause applies where an applicant is in Australia at the time the visa application is made and requires that they either held a substantive visa of a specified kind or that they meet the criteria set out in 600.223(2).

7. In this case there is no dispute that the applicant did not hold a substantive visa at the time the current visa application was made. She is therefore required to meet the criteria set out in cl 600.223(2):

   (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.

8. The applicant’s last substantive visa was a Subclass 601 Electronic Travel Authority and she therefore meets the criteria set out in cl 600.223(2)(a). At issue is whether she satisfies the criteria set out in cl 600.223(2)(b), with the delegate finding that she did not meet criteria 3004.

9. In the circumstances of this case, criteria 3001 requires the visa application be validly made within 28 days of the last day on which the applicant held a substantive visa. As there was less than 28 days between the end of the applicant’s last substantive visa on 28 August 2022 and the making of the new visa application on 20 September 2022, the applicant meets criteria 3001. As the applicant was not an illegal entrant or the holder of an entry permit that was not valid beyond 31 August 1994, criteria 3003 is not relevant to her circumstances.

10. Criteria 3004 requires that where an applicant has ceased to hold a substantive visa, the Minister must be satisfied that:

    ·The applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

    ·There are compelling reasons for granting the visa; and

    ·The applicant has complied substantially with the conditions that applied to the last substantive visa or entry permit held by the applicant and any subsequent bridging visa; and

    ·The applicant would have been entitled to be granted the visa if they had applied on the day they last held a substantive visa;

    ·The applicant intends to comply with any conditions subject to which the visa is granted; and

    ·That the applicant’s last 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 applicant remained in Australia.

11. In dispute is whether the applicant is not the holder of a substantive visa because of factors beyond her control. Relevantly the delegate was not satisfied that this was the case, stating in the decision record that the onus was on the applicant to lodge the visa application at the time she held a substantive visa and maintain her lawful status in Australia. The applicant asserts that she inadvertently overstayed the period of her visa and failed to apply for a further visa as a direct result of her daughter’s medical episodes and that these were events beyond her control.

12. The applicant’s previous substantive visa ceased on 28 August 2022, less than a month prior to current visa application being lodged. Medical records confirm the witness evidence to the effect that the applicant’s daughter experienced a series of serious medical issues in the months leading up to the end of the applicant’s substantive visa period. The applicant arrived in Australia in May 2022 to provide care for her daughter who was pregnant with her second child when she experienced a severe depressive episode that required an extended hospital stay.

13. One month prior to the substantive visa ceasing, the applicant’s daughter was again hospitalised for emergency surgery for a physical illness during her pregnancy. The applicant, a registered nurse in her home country, provided post-operative care for the applicant as well as practical and emotional support to her daughter, her husband and their then toddler and newborn. The statements of the witnesses indicate the extreme distress and pressure felt by the family during these months as well as the vital role played by the applicant in taking on the role of primary carer for her daughter and assisting her daughter’s husband to take care of their older child and continue working during the crisis.

14. The Tribunal is satisfied that the medical episodes experienced by the applicant’s daughter in the lead up to and during the applicant’s substantive visa period were not matters within the applicant’s control and these events led directly to the applicant failing to lodge her visa application before the expiration of her substantive visa. For these reasons the Tribunal accepts that the applicant was not the holder of a substantive visa at the time she applied for the visitor visa because of factors beyond her control.

15. The delegate accepted that there were compelling reasons for granting the visa, being to support the applicant’s daughter who suffered an acute depression during a difficult pregnancy and to help care for her daughter’s children. In that regard the medical evidence and witness statements indicate that the applicant’s daughter has suffered from clinical depression since 2020; that she had a severe depressive episode in 2022 requiring hospitalisation and ongoing mental health treatment and that she also required emergency surgery for a physical health issue. The applicant is a registered nurse and the evidence available to the Tribunal indicates that she provided and continues to provide invaluable support to her daughter and her daughter’s family in her daughter’s ongoing recovery. For these reasons the Tribunal accepts that there are compelling reasons for granting the visa.

16. The applicant has previously travelled to Australia on four occasions since 2011. Her most recent substantive visa grant was a subclass 601 visitor visa granted 15 November 2021 and valid until 28 August 2022 and she was granted a bridging visa C on 21 September 2022. The applicant maintains that she has substantially complied with the conditions of all current and previous visas granted to her and there is nothing in the materials before the Tribunal that indicates otherwise. Her movement records indicate that with the exception of the most recent visitor visa, the applicant has always departed Australia prior to the expiry of the visas granted to her. For reasons already stated, the Tribunal has found that the events that led up to her overstaying her most recent substantive visa application were both compelling and outside her control. The Tribunal is satisfied that she has complied substantially with the conditions that applied to the last substantive visa held by the applicant and any subsequent bridging visa.

17. There is no evidence to suggest that the applicant would not have been entitled to be granted the visitor visa if she had applied on the last day she held a substantive visa, nor was that last visa subject to a no further stay condition. The applicant’s record of compliance with her visa conditions over the last decade satisfies the Tribunal that she intends to comply with any conditions to which any future visa would be subject. For the above reasons, the Tribunal is satisfied the applicant meets criteria 3004.

18. There is no suggestion that any visa or entry permit previously granted to the applicant was granted on the basis of satisfaction of Schedule 3 or any of the other regulations set out in criteria 3005. Therefore the applicant satisfies criteria 3005 and consequently satisfies cl 600.223(2)(b). As such the applicant satisfies cl 600.223 of Schedule 2 to the Regulations.

    DECISION

19. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

    ·cl 600.223 of Schedule 2 to the Regulations

    Alison Murphy
    Member