Nunkoo (Migration)

[2021] AATA 2269

Nunkoo (Migration) [2021] AATA 2269 (15 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Roopwantee Nunkoo

CASE NUMBER:  2106225

DIBP REFERENCE:  BCC2020/2857642

MEMBER:Rosa Gagliardi

DATE:15 June 2021

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 15 June 2021 at 2:06pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of visa application – international border closures – awaiting possible repatriation flight – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001

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 Immigration on 21 April 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 December 2020. The delegate refused to grant the visa on the basis that the applicant did not meet the Schedule 3 criteria because the application had not been lodged within 28 days of the applicant last holding a substantive visa.

3. The applicant appeared before the Tribunal on 10 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence her son, Mr Doorgeshsingh Seetohul.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Clause 600.223 provides:
   
   

   600.223

   (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.
   
   

   Schedule 3 criteria 3001 states that:
   
   

   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.

6. The issue in the present case is whether the applicant has lodged the Tourist visa application under review within 28 days of her last substantive visa.

7. The applicant last held a Tourist (FA-600) visa which ceased on 6 November 2020.  The application under review was lodged on 20 December 2020, therefore there is more than 28 days since the applicant’s last substantive visa and lodgement of the application.  As explained to the applicant and her son, this is where the Tribunal’s inquiry ends, and the applicant cannot meet the requirements for the grant of the visa.  The Tribunal is unable to take into account any circumstances leading to the non-lodgement within 28 days.  Either the applicant has lodged within the relevant time frame or she has not.  As she has not done so, the Tribunal has no discretion to waive the requirements of the visa.

8. In a letter to the Tribunal dated 2 June 2021, the applicant’s son, Mr Seetohul wrote, among other things:

   Firstly my mother is a law abiding citizen of Mauritius and has visited on previous visits to Australia.  Every time she has travelled to Perth, she has gone back on time and has followed all her visa conditions.  On this occasion, she has been deemed not to have followed the conditions of her visa, but I disagree with the view taken by the decision makers.  My mother had a return ticket booked for 3^rd May 2020, but due to COVID, international borders were closed and she was stuck in Perth.  We have made several attempts to resolve this issue but with lack of right advice we have ended up in the situation we currently face…

9. Mr Seetohul also explained that his mother had been told by the Department to apply for the 600 (Visitor) visa and they did this online on 14 December 2020, but were notified by email on 15 December 2020 that the application was invalid and that it had to be posted.  This also contributed to the delay in lodging the application as it was only received on 20 December 2020.  Mr Seetohul also explained that they were hoping that Air Mauritius/Consulate of Mauritius would have announced a possible repatriation flight in December 2020 and his mother would have been able to fly back home then.  He emphasised that his mother would not be in the position she now is if she had been able to travel home to Mauritius on 3 May 2020, but it was not physically possible as there were no flights back.  Mr Seetohul added:

   Please kindly accept my plea for my mother’s visa to be granted to stay until we can get her a flight to go back to Mauritius, we have made every attempt possible on our part to abide by the requirements and conditions stated.  But due to this unprecedented time things have not been as easy as they would have been normally. 

   My mother is ready to go back as she had only planned to stay in Perth till 3^rd May, and we have made many attempts in the hope to get her on a repatriation flight back.  Unfortunately this hasn’t worked out…

10. Mr Seetohul has also set out a timeline of how he saw events unfold. 

11. The delegate also expressed concern that the applicant had a Bridging visa E (WE-050) granted to her on 16 November 2020 which ceased on 15 December 2020.  This resulted in the applicant being unlawful for a total of 5 days until she lodged this Tourist visa application on 20 December 2020.  Mr Seetohul and his mother stated at hearing that they had not done anything to disrespect the migration laws as they assumed the applicant was lawful once they lodged the Visitor visa online.

12. In fact the applicant was arguing that she had never been unlawful at all.  Technically, however, she was without any visa at all for 5 days – that is without a substantive or  Bridging visa.  Despite these facts, however, the Tribunal does not consider the applicant’s lawfulness or otherwise central to its considerations.  The issue is that the application for a Visitor visa was not made within 28 days.

13. The Tribunal does not have responsibility for the operational aspects of maintaining the lawful presence in Australia of persons caught in the applicant’s situation.  This is a matter for the Department.  If the Department does not have mechanisms to enable visitors to maintain a lawful status in Australia while they are waiting for a flight, then it is also open to the applicant to seek Ministerial Intervention.

    DECISION

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

    Rosa Gagliardi
    Member