Parikh (Migration)

[2023] AATA 1364

Parikh (Migration) [2023] AATA 1364 (16 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sarlaben Pravinchandra Parikh

CASE NUMBER:  2108911

HOME AFFAIRS REFERENCE(S):          BCC2021/541549

MEMBER:Rachel Da Costa

DATE:16 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 16 May 2023 at 10:00am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made after last substantive visa ceased – factors beyond applicant’s control – combined hearing with husband’s separate review on same circumstances – parties returned to home countries but represented by son – son advised by department officer to apply for bridging visa then substantive visa – unclear memory of days and actions, and no verifiable evidence of advice – even relying on son, applicant still responsible for applying in time – not necessary to consider compelling reasons for granting visa – decision under review affirmed

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

CASES
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v Minister for Immigration [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 7 July 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 applicant is a 69-year-old citizen of India. She last arrived in Australia on 14 February 2020 as the holder of a Visitor visa. That visa ceased on 14 February 2021. On 9 March 2021, the applicant lodged an application for a further Visitor visa.

3. On 3 June 2021, the Department wrote to the applicant noting that the applicant’s Visitor visa ceased on 14 February 2021 and requested further information on whether there were factors outside the applicant’s control that prevented her from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa. The applicant’s son responded in writing on 8 June 2021.

4. On 7 July 2021, the delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because she did not satisfy the Schedule 3 criterion 3004.

5. On 11 July 2021, the applicant applied for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.

6. This application for review is related to application for review case number 2107950 which was made by the applicant’s husband, who is also a citizen of India. The applications for review are separate but arise out of the same set of circumstances.

7. On 11 April 2023, a Tribunal officer contacted the applicant’s son who has been acting as her representative and authorised recipient, to ask whether the applicant and her husband would consent to a combined hearing and whether they had the technology to participate in a hearing by videoconference. The applicant’s son explained to the Tribunal officer that his parents had returned to India but they still wished to proceed with their applications for review. The applicant’s son confirmed this in writing to the Tribunal the same day and indicated that he would appear in the Tribunal to represent his parents.

8. The applicant was invited to appear before the Tribunal on 12 May 2023 to give evidence and present arguments. On 27 April 2023, the applicant returned the Response to Hearing Invitation form signed by her son. In that form, the applicant indicated that she would not participate in the hearing. She indicated that her representative (her son) would participate in the hearing.

9. The applicant’s son appeared before the Tribunal on 12 May 2023 to give oral evidence as a witness in a combined hearing of this application for review and case number 2107950 which is the application for review by the applicant’s husband. The hearing was held using the Microsoft Teams videoconference platform. The applicant’s son is located in Perth and the Tribunal member is located in Sydney. In the hearing, the applicant’s son confirmed that he understood the hearing related to both his parents’ applications for review and he confirmed to the Tribunal that his parents had both decided they did not want to appear before the Tribunal themselves to give evidence. The applicant’s son gave oral evidence as a witness in both his parents’ applications for review. He indicated that his parents returned to India on 24 February 2023. Movement records held by the Department of Home Affairs confirm this is correct.

10. An interpreter in the Gujarati and English languages was present in the hearing but she was not required as the applicant’s son speaks fluent English.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. 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.

13. 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 600.223.

14. 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.

15. The delegate found that the applicant did not satisfy the requirements of criterion 3004.

16. 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. 

17. The issue in this case is whether the applicant meets criterion 3004. Criteria 3003 and 3005 are not relevant to this review.

    Does the applicant meet the requirements of cl 600.223?

18. Based on the evidence before it, including the applicant’s Visitor visa application form 1419 and movement records of the Department of Home Affairs, the Tribunal finds that the applicant was in Australia at the time she applied for her Visitor visa on 9 March 2021. Based on the evidence before it, the Tribunal also finds that the applicant’s previous substantive visa, which was a Visitor visa, had ceased on 14 February 2021.

19. Therefore, the Tribunal finds that the applicant was in Australia at the time of application, and did not hold a substantive visa and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. On that basis, the applicant must satisfy Schedule 3 criteria 3001 and 3004.

    Does the applicant meet criterion 3001?

20. Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day. The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.

21. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 14 February 2021 and she lodged her application for a Visitor visa (which is the subject of this application for review) on 9 March 2021. Therefore, her application was lodged within 28 days of the relevant day and he meets criterion 3001.

22. The Tribunal notes there is correspondence on the Department file which indicates the applicant’s paper Visitor visa application made on 9 March 2021 was initially lost. The Department wrote to the applicant on 3 June 2021 confirming that her application was received on the same day as that of her husband (9 March 2021) and apologised for the misunderstanding.

23. The applicant must also meet criterion 3004.

    Does the applicant meet criterion 3004?

24. As set out above, criterion 3004 includes a number of requirements. Criterion 3004(c) requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control.

25. In her Visitor visa application form 1419 lodged on 9 March 2021, the applicant states that she wants to extend her stay to 13 February 2022 because “very unsafe to travel back to India. Happy to be here in Australia with Son. Finding Perth as a safest place in the world. Also, can spend more time with Grand-Children. Due to be elderly, could be easily affected by Covid-19, which could have detrimental effect on our health.”

26. On 3 June 2021, the Department wrote to the applicant noting that records indicated her Visitor visa ceased on 14 February 2021 and requesting further information on whether there were factors outside the applicant’s control that prevented her from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa.

27. The applicant’s son responded in writing on 8 June 2021. In his response, the applicant’s son states as follows (unedited):

    RESPONSE 1 –

    The applicant was holding a valid tourist stream (subclass 600) visa which ceased on 14th Feb 2021.

    I (his authorised representative) applied for Bridging visa E after seeking advice from the Department who advised to apply for Bridging Visa E until we apply for any further substantive visa.

    So following the Department’s advice I applied for the applicant’s Bridging Visa E on 13th February 2021 and received a phone call on 16th February 2021 by OFFICER STEPHEN (position no. 00003462).

    The officer then asked me the reason for applying BRIDGING VISA E and I explained him my reason which was for applicant to stay lawfully in the country until we apply for any substantive visa.

    Officer Stephen was agreeable to above and advised to apply for the substantive visa tourist stream (subclass 600) as soon as possible.

    The OFFICER then granted the BRIDGING VISA E on 16th February 2021 valid until 30th March 2021.

    In Summary, there was no controlling factor that prevented the applicant to lodge an application whist holding a substantive visa but I followed the Department’s advise and as I am a laymen in this field, I did not realise the consequences of this.

    …

28. On 7 July 2021, the delegate made their decision. The delegate referred to the written response dated 8 May 2021 from the applicant’s son,[1] which states that the applicant’s visa ceased on 14 February 2021 and a Bridging Visa E was lodged in consultation with the Department. The delegate goes on to state that the applicant acknowledges that there were no factors beyond their control that prevented them from lodging a visa extension before their last substantive visa expired. The delegate notes that the applicant states they were at fault for becoming unlawful and applying for the Bridging Visa E instead of applying for a substantive visa. The delegate states that while the applicant has acknowledged their fault in becoming unlawful and has attempted to lodge a valid substantive visa application, the onus is on the applicant to ensure they comply with their visa conditions and maintain lawful status in Australia. The delegate found that there were not factors beyond the applicant’s control which prevented them from lodging their current Visitor visa application while holding a substantive visa. Therefore, the delegate refused the visa application.

    [1] This response dated 8 May 2021 was submitted in respect of the applicant’s husband, however it is essentially the same as the response dated 8 June 2021 that the applicant’s son submitted in respect of his mother’s application.

29. In his email to the Tribunal dated 11 April 2023, the applicant’s son states that “[a]s a Laymen Citizen, I was given wrong information by Department of Immigration regarding the case from the start. This led us to this challenging situation for all of the family members.”

30. In the Tribunal hearing, the applicant’s son gave evidence that his parents knew about the expiry date of their Visitor visas before the visas expired on 14 February 2021, and the applicant’s son knew as well. The Tribunal asked the applicant’s son why, in that case, his parents didn’t apply for new substantive visas before the expiry date. The applicant’s son explained that in the lead-up to the Visitor visas expiring he had been calling the Department of Home Affairs seeking help, as well as reading online. He said he is a layman. He found out about applying for a Bridging Visa E. He said the Department advised him to apply for a Bridging Visa E and then apply for a substantive visa. He said he told the Department the visas expired on 14 February and asked if he should apply for a substantive visa or Bridging Visa E and whether his parents would be lawful until this decision comes. The Department told him he can apply for a Bridging Visa E. That is what he did because he thought what he was doing was right. He said he had made visa applications on behalf of his parents in the past, but this was the first time he was applying for an extension.

31. The Tribunal asked the applicant’s son why he didn’t simply apply for a new Visitor visa before 14 February 2021. He responded that he followed the advice he was given but he didn’t realise the consequences. He thinks he lost his senses. He said it is not an easy journey as a layman. He understands that the immigration system is complex, like the health system which is the area he works in. He thinks the Department told him the wrong thing. He has learned his lesson and this has led to big trouble.

32. The Tribunal also asked the applicant’s son how he was able to apply for a Bridging Visa E on 13 February 2021 (which is what he says in his response to the Department of 8 May 2021) when his parents’ Visitor visas hadn’t expired by that date. The Tribunal put to him that it did not think this would have been possible if he had applied online because his parents would not have been eligible for a Bridging Visa E on that date and the system would not have allowed such an application to be made. The applicant’s son said he didn’t remember. He said he thinks he applied online, but he could not specifically remember and he doesn’t have documents to show what he did. Then he received a phone call from the Department on 16 February 2021 and spoke to Officer Stephen and lodged paper applications.

33. The Tribunal put to the applicant’s son that the Department can only give information and not advice and asked him why he didn’t get advice from a lawyer or registered migration area if he knew the system was complex and he was applying for a visa extension for the first time. He responded that he didn’t realise the information he was seeking was wrong and so he didn’t ask for professional advice. He said the situation has been emotionally and financially difficult. 

34. The Tribunal found the applicant’s son to be an honest and straightforward witness and accepts that he was being truthful about the events as he recalled them. His evidence was also consistent with his previous written response to the Department.

35. Because the applicant chose not to participate in the hearing, the Tribunal has not had the benefit of receiving oral evidence from him and was unable to discuss with him whether there were factors beyond his control which, in a practical or realistic sense, prevented him from applying for the Visitor visa while he was the holder of a substantive visa. However, the Tribunal considers that based on the oral and written evidence of the applicant’s son, it was the applicant’s son who has the most knowledge of the circumstances that led to the applicant’s visa expiring on 14 February 2021 before she lodged her application for a new substantive visa.

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

36. In considering whether there are reasons which constitute 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.

37. Smith FM, referring to the judgment 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 particular 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.

38. Smith FM goes on to refer to further discussion by Mansfield J making the point at [18] that:

    it is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.

39. The Tribunal has considered all the evidence of the applicant and her son as set out above. The applicant’s son gave evidence that he and the applicant knew the expiry date of the applicant’s Visitor visa in advance of its expiry on 14 February 2021. The Tribunal accepts this. The Tribunal also accepts that the applicant’s son had taken on responsibility for the applicant’s visa renewal process and that he was doing his own research and seeking information and advice from the Department prior to the applicant’s visa expiring because he had not applied for a visa extension before. The Tribunal accepts that the applicant’s son was a “layman” in this process and agrees with his observation that the immigration system is complex.

1. There is no objectively verifiable evidence available to the Tribunal about exactly what the applicant’s son asked the Department in his inquiries and what information or advice he was given. Having considered the oral and written evidence of the applicant’s son about these conversations and his actions as a result, the Tribunal is of the view that the applicant’s son was well-intentioned but he misunderstood or had incomplete knowledge of how the Visitor visa application process works and the relevant deadlines and their consequences. The failure of the applicant’s son to lodge the applicant’s new substantive visa application before her existing Visitor visa had expired suggests to the Tribunal that the applicant’s son didn’t properly understand the process or the consequences. On balance, the Tribunal considers the most likely scenario to be that the applicant’s son didn’t ask the Department the ‘right’ questions due to his lack of understanding and so the information or advice he received led him to lodge a Bridging Visa E application rather than a substantive visa application at the relevant time. On balance, and considering all the available evidence before it, the Tribunal does not accept that the Department provided the applicant’s son with incorrect advice and finds that what happened was due to a misunderstanding or miscommunication.

2. Based on the evidence before it, the Tribunal also does not accept that the applicant’s son lodged a Bridging visa E application for the applicant on 13 February 2021. The applicant’s son admitted that his memory about this was unclear. The Tribunal accepts that this application was made on 16 February 2021 in the course of the conversation between the applicant’s son and Officer Stephen. This is supported by records of the Department of Home Affairs which indicate that the applicant was granted a Bridging visa E on 16 February 2021.

3. In terms of the position of the applicant, the Tribunal acknowledges that it is common for people to allow a family member to assist them with their visa applications and for the family member to effectively act as their agent. However, relying on the help of a family member rather than a professional, such as a registered migration agent or a lawyer with expertise in immigration matters, clearly has its risks. As the applicant’s son stated, he was a layman, he was trying to navigate a complex area and make an application of a type he had never done before to assist his parents. The Tribunal considers that having allowed her son to manage the visa application process on her behalf, it was still within the applicant’s control to ensure that her son took all reasonable steps to correctly inform himself of the visa requirements and process. Based on the available evidence, the applicant did not ensure that her son took all reasonable steps to correctly inform himself and as a result, the applicant’s son made an error due to his own misunderstanding which has resulted in the problem at hand for the applicant. In the Tribunal’s view, this situation did not occur because of circumstances beyond the applicant’s control. Based on all the evidence before the Tribunal, the Tribunal also considers that it was within the applicant’s control and capacity to seek, with the assistance of her son if necessary, professional advice and assistance about her visa application herself. Had the applicant and her son sought professional advice about the visa application and their options, the Tribunal considers that this would have avoided the problem that led to the applicant not holding a substantive visa when she applied for her new Visitor visa.

4. The Tribunal acknowledges that the applicant’s circumstances are regrettable, but it considers that it was within the applicant’s capacity to have avoided this situation from occurring and that what happened was not beyond her control. 

5. For the reasons explained above, the Tribunal does not accept that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control.

   Conclusion

6. Accordingly, the Tribunal finds that the applicant does not meet the requirement in criterion 3004(c). This being the case, it is not necessary for the Tribunal to consider and make findings about whether there are compelling reasons for granting of the visa under criterion 3004(d).

7. Therefore, the Tribunal is not satisfied that the applicant meets the requirements of cl 600.223.

   DECISION

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

   Rachel Da Costa
   Member