Saini (Migration)

[2021] AATA 2968

Saini (Migration) [2021] AATA 2968 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pankaj Saini

CASE NUMBER:  1935274

HOME AFFAIRS REFERENCE(S):          BCC2019/6132000

MEMBER:Louise Nicholls

DATE:20 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2021 at 12:39pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa – applicant attending sports tournaments and seminars – factors beyond the applicant’s control – compelling reasons for granting the visa – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.223; Schedule 3 Criterion 3004

CASES

Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318        

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is 21 years old and is a citizen of India. She arrived in Australia as the holder of a visitor visa on 29 July 2019.

2. On 15 November 2019 the applicant applied for a further Visitor (Class FA) visa. She provided several documents, including

   ·Copy of the biodata page of the applicant’s Indian passport.

   ·Copy of the grant letter for the applicant’s FA600 Visitor- Tourist Stream visa 22 November 2018.

   ·Copy of Malaysian visit visa grant October 2018 to 19 January 2019 (15 days).

   ·A letter from the applicant dated 13 November 2019 setting out the reasons the applicant applied for a FA600 Visitor- Tourist Stream visa extension without holding a substantive  visa, as well as outlining the activities she intended to pursue during that period.

   ·Receipts for booked accommodation -December 2019.

   ·Flight booking details Sydney to Delhi 1 February 2020.

   ·Copies of emails from the applicants email account – confirming the applicant’s enrolment in various sports related seminars.

   ·Copies of school results and copies of participation certificates in sports competitions which took place in India.

   ·Copies of the applicant’s bank statements.

3. On 3 December 2019 the delegate of the Minister for Home Affairs refused the application for a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act) on the basis the delegate found the applicant did not meet cl.600.223 because the applicant did not satisfy the Schedule 3 requirements as set out criterion 3004.

4. This is an application for review of that decision, and it was made on 13 December 2019. The applicant provided documents to support the application including a copy of the delegate’s decision record and photographs of patches which refer to sporting events in 2018. The applicant also provided copies of some of the documents she had previously provided to the Department.

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

   CONSIDERATION

6. 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.

7. 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.

8. Cl.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.

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

10. 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. 

11. The issue for the Tribunal is whether the applicant was not the holder of a valid visa because of circumstances beyond her control, whether there are compelling reasons for the grant of the visa and whether she complied substantially with the conditions of her last substantive visa or bridging visa.

    Background

12. The applicant is an Indian citizen and is 21 years of age. She was born in Punjab State and attended school and commenced college in Ludhiana, Punjab before she came to Australia on a visitor visa.

13. Her parents live in Ludhiana. Her father is a government officer and her mother looks after the family home. Her younger brother is attending high school.

14. She explained that the she was a keen sportswoman and a participant in throwball and fistball in India. She has a strong interest in her sport and sees this as her future occupation, at least in the immediate future. 

15. She first visited Australia for three days in November 2018 to attend an Asian sports tournament. She returned to Australia on a Subclass 600 visitor visa on 29 July 2019. She stated that the purpose was to attend some sports training camps in fistball and to attend some tournaments. She represented India in the Asia Pacific Fistball Championships in 2019 held in Melbourne.

16. She originally visited Melbourne for those events but has since moved to Sydney. She is living with friends in Sydney now and is being financially supported by her father.

17. In her November 2019 statement she claimed that she applied for the visitor visa because she wanted to attend some sporting seminars, attend a 1-day course in concussion and to do some sightseeing. She provided accommodation bookings to support this evidence and booking details for a flight to India on 1 February 2020.

18. At the Tribunal hearing she stated she did not leave on that date due to the COVID 19 pandemic. The Tribunal pointed out there were no travel restrictions on that date. She stated she was not well at that time and that is the reason she did not leave on 1 February 2020.

19. Since her visa application was refused, she has not returned home because she was waiting for the hearing of her application for review at the Tribunal. She also stated it was difficult to get a flight.

    Does the applicant meet the requirements of cl.600.223?

20. The evidence indicates and the applicant agreed that she was in Australia at the time of the application for the visitor visa on 15 November 2019 and that her previous Subclass 600 visa had ceased on 29 October 2019.

21. Accordingly, the Tribunal finds the applicant did not have a substantive visa at the time of her application and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations) visa in the Domestic Worker stream.

22. The applicant must meet the requirements of criterion 3001 and 3004. Criterion 3003 and 3005 are not relevant to this review.

    Does the applicant meet criterion 3001?

23. To satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The 'relevant day' is defined in cl.3001(2), as set out earlier in this decision. That is, 28 days from the date that the applicant last held a substantive visa.

24. The evidence before the Tribunal is that the application was lodged on 15 November 2019 and the last day the applicant held a substantive visa was 29 October 2019. Therefore, her application was lodged within 28 days of the relevant day and she meets criterion 3001.

    Does the applicant meet 3004?

25. The issue is therefore whether the applicant satisfies criterion 3004 which is set out in full earlier in this decision.

26. Criterion 3004 of Schedule 3 to the Regulations requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond her control[1], that there are compelling reasons for granting the visa, and that 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.

    [1] Criterion 3004(c) of Schedule 3 to the Regulations.

27. In addition, the Minister must be satisfied that 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; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; 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.

    Was the applicant not the holder of a substantive visa because of factors beyond his control when he applied for a visitor visa?

28. In her statement of 13 November 2019, she stated that the reason she was not a substantive visa holder when she applied for her Subclass 600 visa was because:

    I was going through personal problems and there was family matter in India which had disturbed me and caused a whole lot of stress to me due to which I got my visa expiry dates mixed up. My visa was going to expire on 29 October 2019; however, I mistook it to be 22 November 2019 and inadvertently overstayed my Visitor visa.  This is completely my fault and oversight. I am a sports person and always very disciplined and meticulous. This is the first time I have ever made a mistake like this and I deeply regret this.

29. At the Tribunal hearing the applicant stated the reason she did not hold a substantive visa at the time of her visa application was because she was worried about her grandfather in India who had been partially paralysed by a stroke. She was very close to her grandfather and her parents. She stated the need to apply for a further visa totally skipped her mind.

30. In considering whether these reasons constituted 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.

31. Smith FM, referring to the judgement 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:

32. 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.

33. The Tribunal notes the applicant claimed she was concerned about her grandfather’s health in India and the Tribunal accepts this. However, the Tribunal does not accept that the effect of this was such that the applicant could not be expected to be aware of the length of time during which the initial visit visa was in effect and to make her application for a further visa during the period of her substantive visa. The applicant has good English skills and has given evidence that she is generally well organised. The Tribunal considers that the applicant’s failure to apply for the further visa during the currency of her last substantive was not beyond her control. It was within the applicant's control to be aware of the Department's visa requirements and to ensure compliance with those requirements.

34. The Tribunal notes that this is not the case involving error by the Department or another agency about the visa validity date or any advice given.

35. The Tribunal finds that the applicant ceased to hold a substantive visa because of her inattention to the requirement to be a substantive visa holder and ensure her application for further visa was lodged before the expiry of the visa she was holding.

36. This being the case, the applicant does not satisfy the provisions at item 3004(c) which apply here and she cannot meet the prescribed criteria at cl.600.223.

    Conclusion

37. For the above reasons the Tribunal is not satisfied that the visa applicant meets the requirements of cl.600.223.

    DECISION

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

    Louise Nicholls
    Senior Member