Pechova (Migration)

[2021] AATA 5481

Pechova (Migration) [2021] AATA 5481 (13 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nela Pechova

CASE NUMBER:  2017666

HOME AFFAIRS REFERENCE(S):          BCC2020/1335053

MEMBER:Jane Marquard

DATE:13 October 2021

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:

·Public Interest Criterion 3004 for the purposes of cl 600.223 (2) of Schedule 2 to the Regulations.

Statement made on 13 October 2021 at 6:47am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Schedule 3 criteria – not holder of substantive visa at time of application – whether because of factors beyond applicant’s control – COVID-19 pandemic – international border closures – flight cancellations – compelling reasons for granting the visa – no intention of breaching any laws – 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
Babicci v MIMIA [2005] FCAFC 77

Liu v MIAC [2010] FMCA 60
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Paduano v MIMIA [2005] FCA 211

Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su v MIAC [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 23 November 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The visa applicant is a woman from the Czech Republic.

2. The visa applicant applied for the visa on 6 April 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 600.223, which requires the visa applicant to satisfy the Minister that she meets Schedule 3 criteria. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because at the time she applied for the visa she did not hold a relevant substantive visa and did not satisfy criterion 3004 in Schedule 3 to the Regulations.

4. The visa applicant appeared before the Tribunal on 6 October 2021 to give evidence and present arguments in relation to issues arising under the review. Her partner, Rudy Antonio Caneira, also appeared at the Tribunal hearing. The hearing was conducted by video due to restrictions imposed by the COVID-19 pandemic. The applicant confirmed that she could see and hear well. The Tribunal is satisfied that the hearing provided a fair opportunity to be heard.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.600.223.  That clause provides (in paraphrase):

   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.

   Was the applicant in Australia at the time of application?

7. The Tribunal is satisfied that the applicant was in Australia at the time of application, being 6 April 2020. This is not an issue in dispute.

   Did she hold a substantive visa at the time of application?

8. The Tribunal is satisfied that the applicant did not hold a substantive visa at the time of application. As confirmed by the applicant at the Tribunal hearing, the last substantive visa held by her was a Visitor visa Subclass 651 which expired on 17 March 2020.

   Findings on Clause 600.223(1)

9. As the applicant was in Australia and did not hold a substantive visa at the time of application, cl.600.223(1) is not applicable.

   Did she hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream?

10. The last substantive visa was not one of these visas as it was a visitor visa. Therefore cl. 600.223(2)(a) is not applicable. She must satisfy cl.600.223(b).

    Does the applicant meet cl.600.223(b) in that she satisfies Schedule 3 criteria?

11. The issue is whether the applicant satisfies cl.600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

12. In regard to Schedule 3 criteria 3004, the Tribunal must be satisfied of all of the following:

    ·the applicant is not the holder of a substantive visa because of factors beyond  his or her control – criterion 3004(c);

    ·there are compelling reasons for granting the visa – criterion 3004(d);

    ·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 – criterion 3004(e);

    ·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 – criterion 3004(f);

    ·the applicant intends to comply with any conditions of the visa – criterion              3004(g); 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 – criterion 3004(h).

    Is the applicant not the holder of a substantive visa because of factors beyond her control?

13. The Tribunal has considered the visa applicant’s reasons for not being the holder of a substantive  visa at the time of the application for the present visa and whether this was because of factors beyond her control.

14. The applicant made written and oral submissions to the Tribunal as follows:

    ·She was granted an eVisitor (subclass 651) visa on 4 May 2019;

    ·She arrived in Australia on 2 July 2019 (copy of her eVisitor visa grant notice provided);

    ·She returned to the Czech Republic on 27 August 2019 to complete her studies of Health Education and Psychology at the University of Pilsen;

    ·On 23 September 2020, she returned to Australia to visit her partner, Mr Rudy Caneira, and between the 14th and the 16th of December 2019, the applicant and her partner travelled to New Zealand together for a brief holiday so the applicant could meet her partner’s friends. The applicant’s last entry into Australia was on the 17 December 2020;

    ·She had intended to depart Australia on 16 March 2020, as her visa expired on 17 March 2020. She had a flight booked at 8pm on 16 March 2020 to Thailand, where she was to meet her parents. However, before her parents could depart the Czech Republic to meet their daughter on 16 March 2020, the Czech Republic Government closed its international borders and the applicant’s parents were unable to depart   (copy of the Czech Republic Government Resolution provided). Her parents called from the airport in the Czech Republic at about 2-3pm when they found out that the flight was cancelled, telling her that they had to turn around and go home. The applicant did not depart the country on her flight that evening even though her visa expired the following day as she was afraid of getting stuck in Thailand, and of being unable to return home to the Czech Republic because of border closures in the Czech Republic. She was also afraid of being unable to get back to her partner in Australia. She had nowhere to live in Thailand. She said that it was the beginning of the COVID-19 pandemic, and no one knew what to do. Furthermore, she said that on 16 March 2020 after her parents’ flight was cancelled, she called many different airlines to try and get another flight to Prague. She said that she was told on 16 March 2020 that there was no flight back to Prague before 20 April 2020, so she booked that flight;

    ·She said that while she was trying to find a flight to Prague, her partner tried to log in to the Immi account. He tried numerous times on the night of 16 March 2020, but could not get into the site, and kept getting error messages. Because of this they called the Department on the morning of 17 March 2020 to let them know what had happened. At about 11am, a female Departmental officer told them that the applicant must apply for a visitor visa by downloading the paper application and sending it as soon as she could. She said that at the time they were panicking as her visa expired that day. They found the application and lodged it, but it arrived too late. They also finally logged in to the account but by that time found that they could only apply for a bridging visa;

    ·The applicant subsequently attempted to depart Australia for Prague on 20 March 2020 (instead of Thailand) however her flight was cancelled. The applicant said that she does not have evidence of her original flight booking however she provided a copy of her flight credit with Emirates and transcript of her communications with Emirates regarding her booking history;

    ·At this time she was unrepresented and believed a Bridging Visa E was the only option available to her that would allow her to lawfully remain in Australia until such a time she could secure a flight (copy of her Bridging Visa E application was provided). As a result of COVID-19 and being unable to depart Australia due to lack of flight availability, the applicant subsequently lodged a Bridging Visa E on the 19th of March 2020 (two days after her eVisitor visa ceased);

    ·She was contacted by the Department on 3 April 2020 who requested the applicant clarify whether she still intended to apply for a partner visa (as referenced in her BV E visa application, page 4), and if so, intended to do so within 28 days of her eVisitor visa expiry date (being the 17th of March 2020) (copies of the email correspondence between the applicant and the Department were provided);

    ·The applicant responded to the Department on the same day explaining that she had now applied for a Visitor Visa (subclass 600) via paper on the 31st of March (received on the 6th of April due to postage delay) (copy of the applicant’s Bridging Visa C provided). The applicant further provided a reference number to the Department to evidence her application (copy of the communication between the applicant and Department provided). It was submitted that the applicant was unable to lodge the Visitor Visa application online as ImmiAccount had registered her application for a Bridging Visa E and would not permit her to apply for the Visitor Visa in addition;

    ·The visa applicant told the Tribunal that she thought that she would only need a bridging visa as would be departing Australia on the 20^th of March;

    ·On 15 April 2020, the Department wrote to the applicant noting that Departmental records indicated the applicant already held a Bridging Visa C which was granted on the 9th of April 2020 (copy of the applicant’s Bridging Visa C provided). The Department gave the applicant the option to withdraw the Bridging Visa E application no later than the 22nd of April 2020. The applicant subsequently requested the Department withdraw the Bridging Visa E on the 15th of April 2020 (copy of the communication between the applicant and Department provided);

    ·On the 9th of June 2020, the applicant and her partner lodged a New Zealand Citizen Family Relationship (subclass 461) visa (copies of documents provided);

    ·On the 9th of October 2020, the applicant received a Request for Further information noting that Departmental records indicated she was an ‘unlawful non-citizen and did not hold a substantive visa at the time of… visa lodgement’. The Department gave the applicant seven days from the 9th of October to respond to the request and evidence that she met Regulation 600.223 (documents provided). On the 13th of October, the Applicant wrote a letter to the Department explaining her circumstances and attached a copy of this to her ImmiAccount (copy provided);

    ·On the 23rd of November 2020, the applicant received email correspondence from an officer of the Department, advising that her Visitor (subclass 600) visa had been refused. The Department noted that no response was received to his request for further information and further that he was not satisfied that factors beyond the applicant’s control were at play, which affected her ability to lodge the Visitor Visa application whilst still holding a substantive visa. It was submitted that the applicant did in fact respond within the required timeframe to the Department’s request (evidenced by an ImmiAccount screen shot) however, this response was not considered by the delegate of the Department in his decision, evidenced by his claim in the Decision Notice that ‘the applicant has not provided a response’; and

    ·It was submitted that the applicant had every intention to depart Australia in advance of her three-month stay coming to an end, however, given the global pandemic and significant increase in flight cancellations she was unable to do so.

15. The Tribunal notes that the applicant had been granted two previous visitor visas, arriving on 6 September 2018 and 4 May 2019 and therefore would have had some experience in dealing with visa applications. The Tribunal notes further that it is clear from the Department website that a visitor visa must be applied for while an applicant has a substantive visa.[1]

    [1] Visitor visa (subclass 600) Tourist stream (apply in Australia) (homeaffairs.gov.au)

16. However, the Tribunal is satisfied that the applicant did not apply for the visitor visa during the term of her substantive visa because of factors beyond her control for the following reasons, and in light of judgments in Su v MIAC [2007] FMCA 318 and Liu v MIAC [2010] FMCA 60.

17. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 involved Schedule 3 criterion 3004 in the context of a Subclass 457 visa. While the application in that case was dismissed by the Court, the judgment provides guidance on the interpretation of the test of factors beyond the control of a person. 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.

18. In the case of Su[2], the court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that It was difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of the 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.

    [2] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

19. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. The test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

20. In this case, the visa applicant became aware of border closures in the Czech Republic on the day she was to fly to Thailand to meet her parents. Her parents had been at the airport when informed of their flight cancellation. The visa applicant did not then take her flight to Thailand on that same day, as she was afraid of getting stranded there, as the borders were closed in the Czech Republic, as evidenced by documents from the Czech Republic. However, the visa applicant’s visa expired the very next day and so she had very little time to regularise her visa status. Notwithstanding this she immediately attempted to do so, seeking out a new flight to Prague, and booking one on 20 March 2020, and trying to contact the Department and apply for a bridging visa to stand her over until then. Her flight on 20 April was then cancelled, and it was too late to apply for a visitor visa before the expiry or her substantive visa. These events took place in the early days of the first wave of the COVID-19 pandemic, when there was considerable uncertainty within airlines, the Australian government and presumably the Department as to how to deal with the challenges which arose. These circumstances, sudden border closures and flight cancellations caused by the COVID-19 pandemic a day prior to the expiry of her substantive visa, were factors beyond the visa applicant’s control, in that she only had one day to apply for her visitor visa during the currency of her substantive visa.  In contrast to the facts in the case of Su[3] and Liu[4]there was no misunderstanding or forgetfulness on the part of the applicant, instead there was no time to arrange the visa. The Tribunal is satisfied that, considering her particular circumstances and in particular the short time frame, it was not within her capacity to ‘appreciate what was needed and to perform an action which would have avoided the event occurring’, or that in a practical or realistic sense she was able to do so.[5]

    [3] Su v MIAC [2007] FMCA 318

    [4] Liu v MIAC [2010] FMCA 60

    [5] Su v MIAC [2007] FMCA 318

21. The Tribunal is satisfied therefore that the applicant was not the holder of a substantive visa at the time of application due to factors beyond her control.

22. The Tribunal is satisfied therefore that the applicant meets the requirements of criterion 3004(c).

    Are there compelling reasons for granting the visa?

23. The expression “compelling reasons” is not defined for the purpose of criterion 3004. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. In MZYPZ v MIAC [2012] FCA 478 at [10] – [12] Bromberg J summarised the principles saying that “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v MIMIA [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v MIMIA [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ). In MZYPZ Bromberg J noted that “[u]ltimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred”, at [12].

1. The Tribunal accepts the applicant’s evidence that the delay in applying for the visa, stemmed from confusion as to her eligibility regarding the relevant visa subclasses, which explains why she applied for a Bridging Visa E, rather than a Visitor Visa in the first instance, given the short time frame from the cancellation of her parents’ flight to the date of expiry of her visa. Further the applicant had expectations of flying on 20 March 2020 such that a bridging visa appeared appropriate. The Applicant notes that she spent the two-day period between her eVisitor visa expiring and lodging her Bridging Visa E application, trying to book flights and reinstate her lawful stay in Australia. The Tribunal has also taken into account the fact that COVID-19 was very new at that time and it is likely the Department of Home Affairs and Emirates (whom her scheduled flight was with) were inundated with calls at this time such that it was difficult to get information as claimed by her and her partner.

2. The Tribunal is persuaded by the sequence of events which occurred that the applicant had no intention to overstay and in fact had planned on leaving the country the day before her visa expired. The Tribunal notes the considerable uncertainty at that time as to how COVID-19 would continue to impact on borders and flights. The applicant was with her partner in Australia, awaiting a partner decision in New Zealand, and was afraid of being stranded in Thailand with no resources or contacts and unable to return to her parents in the Czech Republic. The applicant and her partner are clearly motivated to lawfully apply to be together and had no intention of breaching any laws.

3. In these circumstances, the Tribunal is satisfied that it is compelled to exercise the discretion inferred (MZYPZ[6]) and that the circumstances are sufficiently powerful to lead the Tribunal to make a positive finding in favour (Babicci[7]) of granting the visa.

   Has the applicant complied substantially with the conditions applicable to the last of any substantive visa and any applicable bridging visa?

   [6] MZYPZ v MIAC [2012] FCA 478

   [7] Babicci v MIMIA [2005] FCAFC 77

4. The Tribunal is satisfied that, in the absence of any evidence to the contrary, the applicant has complied substantially with the conditions applicable to her last substantive visa. The Tribunal is satisfied that but for the global pandemic and the uncertainty surrounding travel, migration and border closures, the applicant had always intended to depart Australia to comply with the three-month stay condition imposed on her eVisitor Visa.

5. The Tribunal finds that the applicant meets the requirements of 3004(e).

   Would the applicant 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?

6. The Tribunal accepts that on the day she last held a substantive visa she would have satisfied the criteria for the visa and it was only the factors beyond her control which prevented grant of this visa.

7. The Tribunal finds that the applicant meets the requirements of 3004 (f).

   Does the applicant intend to comply with any conditions of the visa?

8. The Tribunal is satisfied that the applicant intends to comply with conditions of her visa. Her consistent and persuasive evidence is that she intended to depart Australia in compliance with visa conditions and was prevented from doing so by sudden flight cancellations and border closures when the COVID-19 pandemic was very new. The Tribunal notes that the applicant and her New Zealand national partner intend to permanently reside in Australia once the visa applicant is granted a permanent visa and for this reason the applicant is aware of the importance of complying with any conditions imposed on her visas in the future.

9. The Tribunal is satisfied therefore that the applicant meets 3004(g).

   Was the last visa or entry permit held (if any) 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?

10. The Tribunal is satisfied 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, of a further entry permit, while the holder remained in Australia.

11. The Tribunal is satisfied therefore that the applicant meets 3004(h).

    Conclusion

12. For the reasons the Tribunal has given above, the Tribunal is satisfied that the applicant meets the requirements of criterion 3004. 

13. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.600.223.

    DECISION     

14. 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:

    ·Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

    Jane Marquard
    Member