Rai (Migration) - [2024] AATA 1072

Rai (Migration) [2024] AATA 1072 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Sushma Rai
REPRESENTATIVE:  Mr Majeesh Variyaniyil Gopi (MARN: 1808791)
CASE NUMBER:  2302699
HOME AFFAIRS REFERENCE(S):          BCC2022/5218542
MEMBER:Jane Marquard
DATE:29 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 29 April 2024 at 3:45pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – substantive visa not held when application made – application made one day after previous visa expired – factors beyond applicant’s control – physical health and treatment, and stress – condition not incapacitating and minimal efforts to make appointment with specialist – joint hearing with daughter’s application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3004(c)
CASES
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 February 2023 to refuse to grant the visa applicant a Subclass 600 (Visitor) (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW AND TRIBUNAL HEARING
The visa applicant, Mrs Sushma Rai, applied for the visa on 6 December 2022. Her daughter, Amina also applied for a Subclass 600 (Visitor) (Class FA) visa on the same date.
The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) 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.
The visa applicant appeared before the Tribunal on 11 April 2024 by MS Teams video to give evidence and present arguments. Her daughter, Amina also appeared at a joint hearing in relation to her matter, as the issues raised were the same and Sushma and Amina requested a joint hearing. Another daughter, Elina, also appeared at the hearing. The visa applicant and her daughters are referred to by their first names in this decision so as to distinguish them from each other.
RELEVANT LAW
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.
The criteria for a Subclass 600 visa are set out in Part 600 of the Regulations. Relevantly to this case, they include cl 600.223, which requires a visa applicant to satisfy the Minister that he or she meets Schedule 3 criteria. 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.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has considered whether the applicant meets cl 600.223(1) or (2)(a) or (b), (which are set out earlier in this decision).
Was the applicant in Australia at the time of application? (Cl 600.223(1))
The Tribunal is satisfied that the visa applicant was in Australia at the time of application, being 6 December 2022, as demonstrated by Departmental movement records. This is not an issue in dispute and was confirmed at the Tribunal hearing.
Did the applicant hold a substantive visa at the time of application? (Cl 600.223(1))
The Tribunal is satisfied that the visa 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 600 which expired on 5 December 2022.
Findings on Clause 600.223(1)
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 the applicant hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream? (Cl 600.223(2)(a))
The last substantive visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream as it was a visitor visa.
Therefore cl 600.223(2)(a) is not applicable. The visa applicant must therefore satisfy cl 600.223(b).
Does the applicant meet cl 600.223(b) in that she satisfies Schedule 3 criteria?
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.
Regarding 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 (criterion 3004(c))?
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 visa and whether this was because of factors beyond her control.
The visa applicant made the following submissions to the Department. She said that she and her daughter, Amina, were in Australia with the support of their relative, Ms Elina Rai (daughter of Sushma and sister of Amina). The applicant said that since the end of November 2022 she had ‘serious psychological and medical trauma’ caused by extensive pain in her feet. She said that she had been referred to a specialist for further investigation. She submitted to the Department that if she had her visa refused, they would miss the specialist assessment and the whole family would be affected. She provided a referral to a specialist, a medical report and a pathology report. It was submitted, regarding herself and Amina, that there were factors outside their control preventing them lodging a visa application while holding a substantive visa.
Submissions were provided as follows to the Tribunal as follows:
·Report from Clinton Medical Centre dated 16 January 2023 to Dr Danesh, referring Sushma Rai for opinion on bilateral feet pain. Dr Haridas stated that she had been extensively investigated for bilateral feet pain and was on multiple medications without improvement, ‘most likely’ due to ‘burning feet syndrome’.
·Blood test results 21 November 2022.
·Clinton Medical Centre Certificate dated 20 January 2023 certifying that Sushma Rai had a medical condition.
At the Tribunal hearing Sushma and Amina were questioned about why they did not apply for the visa before the expiry of the substantive visas. The visa applicant said that she had pain in her feet and did not know about the visa expiry. She said that her daughters were helping her. She said that she wants to do treatment in Australia before she leaves Australia. Amina said that her mother was sick and stressed at the time and it was a mistake. She said that her sister Elina had been too busy at the time to apply for the visas. Amina was asked why she could not have applied for the visa within the term of the last substantive visa. She said that she had approached an agent, who is still acting for them. The Tribunal asked the applicant and Amina why the agent did not apply for the visa while they were holders of the substantive visa. Amina said that they were under stress as her mother was sick and they provided the documents to the agent ‘a bit later’ and missed the date. Amina said that it was their mistake. She said that she had been looking after her mother as her sister Elina was very busy.
The applicant’s daughter Elina gave evidence that she knew the visa was expiring soon. She said towards the end of the visa period, her mother had severe pain under her feet. Elina said that she was ‘super stressed at the time’. Elina works as a nurse and was ‘super tired and stressed’ after working long hours. She said that for this reason they only contacted the agent late, just missing the date. She said that the doctor recommended a pain specialist, but her mother has still not seen the specialist as there was no appointments available. She said that her younger sister looks after her mother. She said that if her mother returns to her country, she will not be able to get an appointment. The Tribunal noted that she had seen a doctor in February 2023, so it seemed unusual that she had not had an appointment since then. She said that she had been ‘chasing the appointments’ but had not been able to get one. She said that she would be grateful if her mother had extra time to attend the appointments.
At the Tribunal hearing, the Tribunal discussed with the applicant and Amina the fact that there did not appear to be factors beyond their control which had prevented them from applying for the visas while they held their substantive visas. The Tribunal put to them that according to the law a mistake is not a reason beyond a person’s control as it would be expected that persons keep themselves aware of the expiry date of their last visas by looking at their passports. The applicant, Amina and Elina reiterated that it was stress that prevented them from applying on time.
The Tribunal provided the applicant and her family with time after the hearing to provide medical reports or other documents including information to show that they had tried to get a specialist appointment. In post-hearing submissions, the applicant’s daughter Elina said that she had tried to get an appointment for her mother. She attached the request for a specialist appointment from the Clinton Medical Centre on 16 January 2023, which had already been provided to the Tribunal. Elina said that she contacted the specialist in January for an appointment. She attached an email dated 12 April 2023 addressed to the Goulburn Health Hub requesting an appointment. She said that following this she made telephone calls to the clinic. She said that on 11 April 2024 she followed up with an email, and the specialist confirmed that there would be an appointment available shortly. She provided an undated email from the Goulburn Health Hub asking her to contact them for an appointment for herself. She also commented that her sister was her only support in Australia. She said that they did not mean to overstay purposefully.
The Tribunal has carefully considered the submissions. The Tribunal acknowledges that it is unfortunate that the applicant and her daughter missed the requisite date by only one day and accepts that they did not overstay ‘purposefully’ and that it was inadvertent. The Tribunal notes that it is unlikely that the visa applicant’s health condition was of the most serious nature, considering that they have not made many efforts to get an appointment with a specialist, as illustrated by the documents provided, and that the most recent document was on the day of the Tribunal hearing. The medical report did not illustrate incapacity and no recent medical reports were provided. Nonetheless the Tribunal accepts that the applicant had extreme pain in her feet, which caused them stress and that Elina was busy working long hours as a nurse.
The term ‘beyond the applicant’s control’ is not defined in the legislation. Departmental policy suggests that there must be circumstances external to the applicant for example where there was a serious accident or illness which rendered the applicant incapable of making an application. The Department states that it is reasonable to assume that a visa holder is aware of the period covered by the visa and conditions attached, unless there is evidence to the contrary.[1] Departmental policy is not binding on the Tribunal but can be a guide.
[1] Department of Home Affairs, ‘POLICY AND MIGRATION REGULATIONS – SCHEDULES – [Sch3] Additional criteria applicable to unlawful non-citizens and certain bridging visa holders – Criteria 3003 and 3004-applicant’s circumstances must have been beyond their control – meaning of ‘beyond the applicant’s control’ (re-issue date 11/03/2016).
There have also been a number of court decisions regarding the term ‘beyond the applicant’s control’.
The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 (Su $ Ors), 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.
In the case of Su & Ors[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. The court stated that cl 3004(c) requires an investigation of the causes of the applicant not being the holder of a substantive visa at the time of application, to consider how it might have been avoided, rather than a characterisation of someone being at fault.
[2] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318.
In Liu & Ors 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 differently constituted 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.
In this case, similar to that in Su & Ors, there was forgetfulness. The court found in Su & Ors that it was difficult to regard as beyond control an event caused by forgetfulness or misunderstanding. As in Lu, stress caused by the applicant’s pain in her feet does not mean it was not within the applicant’s capacity or the capacity of her daughters 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 not able to do so.[3]
[3] Ibid.
In Montero v MIBP [2014] FCCA 946, the applicant claimed that he met cl.3004(c) as he had submitted documents to his employer who prepared the application, repeatedly advised them of his visa expiry date, and that this was a type of visa application which required his employer’s assistance to lodge. The Tribunal in that case did not accept it was beyond the applicant’s control to lodge the application within time himself and found that his decision to let the employer lodge the application was a choice made within his control, referring to Su v MIAC [2007] FMCA 318.[4] The court found that the Tribunal made a jurisdictional error by misconstruing or misapplying cl.3004(c). Although the Tribunal referred to the exposition of the expression ‘beyond the control of a person’ in Su & Ors [5], it did not apply it. The Tribunal failed to consider the fact that the applicant could not have applied for the visa without the cooperation of his employer; and that the applicant could not direct his employer to do what it had to do to enable him to apply before his Subclass 572 visa expired. In that regard cl.857.213(a) required that he must have been nominated by an employer for an appointment in the business of that employer. The circumstances in this case can be distinguished from Montero in that the visa application did not depend on the actions of a third party.
[4] Montero v MIBP [2014] FCCA 946, [10].
[5] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318.
In light of the judgments in Su v MIAC [2007] FMCA 318, Liu v MIAC [2010] FMCA 60 and Montero v MIBP [2014] FCCA 946, the Tribunal is not satisfied that the applicant is not the holder of a substantive visa at the time of application due to factors beyond her control. The Tribunal is satisfied that she could have done something to ensure that the visa was applied for during the period of the substantive visa. Medical reports do not establish that there was a serious illness which incapacitated the applicant and her daughters from making the visa application within the term of the last substantive visa. Despite the stress, one of them could have kept a record of the expiry date and ensured that they applied within time. In a practical or realistic sense, the applicant could have ensured that she applied for the visa during the term of the substantive visa. Although the applicant has always complied with visa conditions and the mistake was inadvertent, the Tribunal is not satisfied for the reasons set out above that the applicant was not the holder of a substantive visa at the time of application due to factors beyond her control.

The Tribunal is not satisfied that the applicant meets the requirements of criterion 3004(c).
Conclusion
For the reasons the Tribunal has given above, the Tribunal is not satisfied that the applicant meets the requirements of criterion 3004.
Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl.600.223 of Schedule 2 to the Regulations.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Jane Marquard
Member