Ramm (Migration)
[2024] ARTA 845
•1 October 2024
Ramm (Migration) [2024] ARTA 845 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Miss Kerry Ramm
CASE NUMBER: 2310207
HOME AFFAIRS REFERENCE(S): BCC2023/3045647
MEMBER:Jane Marquard
DATE:1 October 2024
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:
• Criterion 3004 for the purposes of cl 600.223 of Schedule 2 to the Regulations.
Statement made on 01 October 2024 at 4:41am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – not holder of substantive visa when application made – factors beyond applicant’s control and compelling reasons for granting visa – deaths in family, breakup of relationship, COVID, severe physical health conditions and reduced mental functioning – application made three days before last visa expired invalid because of non-payment of additional fee – application site charged only base fee – reasonable to rely on department’s information – notified of invalidity after visa expired and unable to rectify – second application, paying additional fee, made promptly and valid – improving health and plans for travel, socialising and departure – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 46(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3004(c), (d)CASES
Babicci v MIMIA [2005] FCAFC 77
Liu v MIAC [2010] FMCA 60
MIAC v Chan (2008) 172 FCR 193
Mohammed v MIBP [2015] FCA 184
MZYPZ v MIAC [2012] FCA 478
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v Minister for Immigration [2007] FMCA 318STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 23 June 2023 to refuse to grant her a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is a woman from the United Kingdom.
She first arrived in Australia on 31 August 2019 on a Visitor (Tourist) (TV-651) visa. She departed the country and then returned on a number of occasions, last arriving on 10 March 2020.
She was granted a Visitor (Tourist) (FA-600) visa on 24 November 2022. This visa expired on 24 May 2023.
The visa applicant applied for the visa the subject of this review on 31 May 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.
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 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 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.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has taken into consideration the application and supporting documents before this Tribunal and new evidence before the Tribunal. The applicant made written submissions dated 7 September 2024. She also appeared before the Tribunal by video on 18 September 2024 to give evidence and present arguments.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The issue in the present case is whether the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations. 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?
The Tribunal is satisfied that the applicant was in Australia at the time of application, being 31 May 2023. This is not an issue in dispute.
Did she hold a substantive visa at the time of application?
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, and by Departmental records, the last substantive visa held by her was a Visitor Subclass 600 visa which expired on 24 May 2023. She applied for the visa the subject of review on 31 May 2023
Findings on cl 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 she hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream?
The last substantive visa was not one of these types of visas as it was a visitor visa. Therefore cl 600.223(2)(a) is not applicable.
Does the applicant meet cl 600.223(b) in that she satisfies Schedule 3 criteria?
As cl 600.223(1) and cl 600.223(2)(a) are not applicable, 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.
In respect of Schedule 3 criterion 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 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?
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.
In submissions to the Tribunal dated 7 September 2024 the applicant provided background to the application. She said that she came to Australia in August 2019 with the intention to visit friends, travel and have a vacation after a difficult time, as her father had passed away in February 2019 after three years of terminal illness and she had also just separated from a long‑term partner. She had planned to travel around Australia, however at the beginning of 2020 the COVID-19 pandemic hit, and by March 2020 lockdown had begun.
She said that on 2 May 2020 her brother Timothy Ramm passed away unexpectedly at the age of 52 after suffering a heart attack. She said that she was devastated about not being able to attend the funeral and be with family and friends.
In October 2020 she had COVID-19 and was sick for three weeks and was weak for three weeks after contracting the virus. In January 2021 she contracted COVID-19 for a second time with similar symptoms and severity. After recovery, she continued to feel tired and weak and ‘mentally depleted’. By October 2021 she was feeling very weak and unable to exercise, had no appetite, was dizzy and exhausted. She tried herbal remedies. On 21 January 2022 she was admitted to Royal North Shore Hospital. She had lost the feeling in her left side and was unable to walk. She was put on a drip for potassium as her levels were dangerously low. After tests she was advised by her neurologist that her symptoms could be due to nervous system dysfunction. She said that when discharged, she returned to her friend Eleanor’s house.
The applicant provided a number of photographs of her in the wheelchair and while she was ill.
She said that she was referred to neurologist Dr Patrick Aouad at Sharp Neurology. She had an appointment on 11 March 2022. She was also under the care of Dr Jacqueline Brivulis at Crows Nest Medical Centre. She said that at the time she was in a wheelchair and needed considerable assistance with day to day living Her friend Eleanor made meals, washed her clothes and helped her wash. The applicant could only walk a few paces with the help of a walking stick. She could not hold a kettle filled with water or carry anything. She could not talk for long periods. The specialist diagnosed her with functional neurological disorder and advised a rehabilitation program. She started physiotherapy and slowly built up her strength. She said that by August 2022 she could walk around the flat with a stick but still required a wheelchair. By January 2023 her mobility had improved but she still experienced bouts of fatigue.
The applicant told the Tribunal that by March/April 2023 her health and strength had improved, and she hoped to fulfil her wishes of travelling in Australia and seeking friends in Melbourne.
She applied to the Department for a visitor visa on 21 May 2023. She received an ‘invalid application’ notice on 31 May 2023 from the Department, advising her that an additional subsequent temporary application charge (STAC) fee had not been paid. She said that on 31 May 2023 she immediately contacted the ‘immigration technical department’ by email to advise them that when she had paid her fee on 21 May 2023, she was not given an option to pay the STAC fee and the only option was the base sum of $380, which she paid. They advised her to apply again immediately which she did on 31 May 2023 and this time she was able to pay the STAC fee.
The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 (Su) 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,[1] 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.
[1] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
In Liu v MIAC [2010] FMCA 60 (Liu), 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.
In this case, the applicant speaks English and had experience with applications for visas. Arguably she should have been aware of fees payable. The Act specifies the requirements for a valid visa application.[2] Under s 46(1) of the Act, an application is valid if fees or charges required by the Regulations have been paid. This is referred to on the Department website: ‘your application is not valid until we receive your payment’[3] and:
your visa application is not valid until we receive the total first instalment of the visa application charge. If less than the total amount is paid, we cannot commence the processing of your visa application until the correct amount is received. If there is a gap in time before you pay the correct amount, this might impact on your eligibility for the visa. The price might also rise in the interim and you will need to pay the new amount. We might contact you regarding outstanding amounts that need to be paid or we might return your application to you and you will need to lodge your application again with the correct amount.
[2] A visa application has not been ‘made’ unless all the requirements for a valid application have been satisfied and there is no room for retrospective validation of an invalid application: Mohammed v MIBP [2015] FCA 184.
[3] How to pay for online application (homeaffairs.gov.au)
The required fee is calculable by reference to the Department of Home Affairs website.[4] The website makes it clear that for visitor visas of the type applied for, a ‘subsequent temporary application charge’ (STAC) is applicable.[5]
[4] Calculating the visa application charge (homeaffairs.gov.au)
[5] Subsequent temporary application charge (homeaffairs.gov.au)
On one argument the applicant should have been aware that the required amount had not been paid with the application lodged on 21 May 2024 and therefore there was not a valid application.
Although it is arguable that she should have realised the amount paid on 21 May 2024 was not the correct amount, the Tribunal is of the view that a reasonable person would rely on the information provided on a government website in relation to the total fee payable, where a particular fee was calculated for her to pay.
At the Tribunal hearing, she confirmed that when she went on to the Department site and filled in the details for the visa (and all the inserted information was correct), when she selected ‘payment’ the only option was to pay $380. Although she had been under the impression that she needed to pay more money than that, because the system indicated that she must pay $380, she thought that she must have been wrong and relying on the system, she believed that $380 was all that was required. She did not make any enquiries of the Department for this reason.
The Tribunal accepts her submissions that she attempted to apply for a visa within the term of her previous substantive visa and the only reason she was not the holder of a substantive visa when she applied on 31 May 202 was that her earlier application had been found invalid because of incorrect payment, however she had relied on the indicated fee to be paid. Although the applicant later paid the required fee, this was not within the prescribed time (by 24 May 2023).
She also mentioned to the Tribunal that although her health had much improved by the time of this application, her thinking and cognition was still suffering. She said that she had come to Australia to recover after a long period of caring for her father who passed away. Following this, her brother to whom she was close passed away suddenly. She said that she went on a trajectory downhill until she was in a wheelchair. She said that she has had significant mental stress and has worked very hard to get better physically and mentally. She feels lucky and grateful as she has had support in Australia. However she confirmed that she has been ‘all over the place’. She said that she could not write for some time. She confirmed that she was not functioning well even when making the application.
The Tribunal is satisfied that subjectively, considering her mental state and the fact that she relied on the government website which did not allow her to pay the STAC, she felt that she was not able to do something to prevent the relevant event occurring as the site did not give her an option to pay the STAC fee. The Tribunal also considers that the invalid application was not within the control of the applicant in a practical or realistic sense, in that a reasonable person would have relied on paying the fee indicated by the system. Furthermore, the Department only advised her of the invalid payment on 31 May 2023 so that she was unable to pay the extra fee within the term of the substantive visa even if she had wanted to do so, and noting that as soon as she was notified, she did pay. In Mon Tat Chan v MIAC[6] (Mon Tat Chan) the Full Federal Court considered the point at which a valid application for a student visa was made. The applicant in that case had attempted to lodge a student visa application but had not provided satisfactory evidence of either being enrolled or offered a place in a registered full-time course of study as required by item 1222 of Schedule 1 to the Regulations. He later lodged a further application with a confirmation of enrolment and the applicable visa charge, however, by this time, it had been more than 28 days since the expiry of his previous student visa and the Tribunal found the applicant was not able to meet a Schedule 2 criterion for the grant of the visa.
[6] MIAC v Mon Tat Chan (2008) 172 FCR 193.
The majority in Mon Tat Chan found that an application cannot become valid prior to the applicant complying with the provisions of the Act and Regulations that make the application valid.[7] An application for a visa is only valid if it satisfies the criteria and requirements prescribed under s 46. In the circumstances of that case, the majority found that the lodgement of the second application perfected the earlier application, thereby making it a valid application, but it did not become a valid application until the later date.[8] As the applicant was notified of the invalidity after the expiry of the substantive visa, this meant that she was unable to rectify the mistake within the term of the substantive visa, and this was therefore a factor beyond her control. In contrast to the facts in the case of Su[9] and Liu[10] there was no forgetfulness or reliance on others. The Tribunal is satisfied taking these circumstances into account that it was not within the applicant’s 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, in the unique circumstances of this case, she was able to do so.[11]
[7] MIAC v Mon Tat Chan (2008) 172 FCR 193 at [10], [55].
[8] MIAC v Mon Tat Chan (2008) 172 FCR 193 at [10], [51]. In dissent, Moore J found that the process of applying for the visa began on the earlier date and was later completed. The date of application was the earlier date. In Mohammad v MIAC [2009] FMCA 434 at [27], the Court applied Mon Tat Chan and held that the application would only have become a valid application on the date that all of the evidence was submitted, and until the evidence of enrolment was submitted, the student visa application was invalid. See also Amodi v MIAC [2013] FMCA 70 at [26]–[27], where the Court held that an application for a Subclass 487 visa, which was invalid on lodgement because a completed and executed sponsorship form (Form 1277) was not in existence, became valid, although not with retrospective effect, upon the completion and execution of the relevant form.
[9] Su v MIAC [2007] FMCA 318
[10] Liu v MIAC [2010] FMCA 60
[11] Su v MIAC [2007] FMCA 318
The Tribunal is satisfied that the applicant is not the holder of a substantive visa because of factors beyond her control.
The Tribunal is satisfied therefore that the applicant meets the requirements of criterion 3004(c).
Are there compelling reasons for granting the visa?
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 (MZYPZ) 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 (Babicci) 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].
The Tribunal is satisfied there are compelling reasons for granting the visa, for the following reasons.
Firstly, the applicant has suffered significant tragedy in the UK and was hoping her visit to Australia would be a period of recovery and enjoyment, however serious ill-health has prevented this from occurring. She told the Tribunal that she came to Australia to travel and see the country and spent time with Australian friends but was unable to do initially because of COVID-19 lockdowns and then because of the illness (described earlier in this decision). She said that there were times when she felt she would never recover, and now that she has, she wants to move forward positively, to get stronger so she can return to the UK to work and find a place to live. She said that she has close friends with children in Melbourne who have invited her to stay and to show her the area. She also has a friend who she plans to go travelling with, who would show her Queensland and Uluru at the end of the year. She provided a copy of an email from ‘Andrei’ who said that she was welcome to stay in Melbourne for a couple of months. She also provided a copy of an email from Alice Solomon who set out some ‘travel ideas’ including Byron, Maleny, Barrier Reef, Daintree and Uluru. She suggested they travel for 4 to 6 weeks in November or January.
The applicant said that she is much stronger and would appreciate the chance to travel and see her friends for 6 to 9 months before she leaves Australia. She has been continuing her efforts to improve her health with yoga, meditation and nutrition.
She provided a letter from Dr Brivulis, a psychologist, dated 12 September 2023. She said that she first saw the applicant on 9 March 2022. She was wheelchair-bound and suffering from left‑sided weakness and fatigue. She had been admitted to Royal North Shore Hospital on 21 October 2022 with a suspected stroke, but tests were not consistent with a stroke. When the doctor saw the applicant, she had little improvement and could only weight bear for a few steps and could not brush her teeth or complete other simple everyday tasks. She referred the applicant to a neurologist, and she was diagnosed with functional neurological disorder. Dr Brivulis said that the applicant had made slow but steady progress. By 16 August 2022 she could walk with a walking stick but still had significant weakness. She still required a wheelchair to leave the house.
The applicant provided a character reference from Lisa Rawlinson. Ms Rawlinson said that she met the applicant while travelling in the UK. She said that she has a positive outlook on life, and is energetic, with a close network of friends, and is sociable and caring. She confirmed that the applicant was unwell, and she lost a lot of weight. She has been recovering over the last 12 months and should now be able to do the activities planned.
The applicant also provided a travel Itinerary which would include Melbourne and Victoria for 6 weeks from October 2024, the Blue Mountains and NSW in December for 2 weeks and Queensland and Uluru from January for 6 weeks.
Considering this evidence cumulatively, the Tribunal is satisfied that there are compelling reasons for granting the visa, which are ‘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). These reasons are the tragedies she suffered, with the death of her father and brother and the breakup of her relationship and the fact that her ill-health has prevented her from travelling and seeing friends while she has been in Australia. She now has the opportunity to do so.
Secondly, the Tribunal is compelled to grant the visa when considering that she attempted to apply for the visa within the term of her substantive visa (on 21 May 2023). Furthermore, as soon as she was notified of the incorrect fee paid, she rectified the situation. It appears that she acted in good faith throughout.
In these circumstances, the Tribunal is satisfied that it is compelled to exercise the discretion inferred (MZYPZ[12]) and that the circumstances are sufficiently powerful to lead the Tribunal to make a positive finding in favour (Babicci[13]) of granting the visa.
[12] MZYPZ v MIAC [2012] FCA 478
[13] Babicci v MIMIA [2005] FCAFC 77
As there are compelling reasons for granting the visa, the applicant meets the requirements of criterion 3004(d).
Has the applicant complied substantially with the conditions applicable to the last of any substantive visa and any applicable bridging visa?
As there is no evidence to the contrary in the migration records, the Tribunal is satisfied that the applicant has complied substantially with the conditions applicable to her last substantive visa. She confirmed at the Tribunal hearing that she has complied with the conditions of her visa.
The Tribunal finds that the applicant meets the requirements of criterion 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 visa?
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.
The Tribunal finds that the applicant meets the requirements of criterion 3004(f).
Does the applicant intend to comply with any conditions of the visa?
The Tribunal is satisfied that the applicant intends to comply with conditions of her visa. Her Departmental records indicate that she has complied with previous conditions, which is given significant weight. She also confirmed to the Tribunal that she intends to comply with all visa conditions and would return to the UK for work at the end of her visit. She said that she is already making contacts for work and with friends in the UK. She said that she simply wishes to travel in Australia and see friends before returning.
The Tribunal is satisfied therefore that the applicant meets criterion 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?
The Tribunal is satisfied from her migration records 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 holder remained in Australia.
The Tribunal is satisfied therefore that the applicant meets 3004(h).
Conclusion
For the reasons the Tribunal has given above, the Tribunal is satisfied that the applicant meets the requirements of criterion 3004.
Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations.
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:
• Criterion 3004 for the purposes of cl 600.223 of Schedule 2 to the Regulations.
Jane Marquard
Member
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