Singh (Migration)

[2024] AATA 1026

Singh (Migration) [2024] AATA 1026 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  2302304

HOME AFFAIRS REFERENCE(S):          BCC2022/4841215

MEMBER:Melissa McAdam

DATE:23 April 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 of Schedule 3 for the purpose of cl 600.223(2) of Schedule 2 to the Regulations.

Statement made on 23 April 2024 at 11:37am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – compelling reasons – departure delayed by COVID illness – visitor visa extension application lodged late – arrangements to depart Australia soon – minimally late lodgement – substantial compliance with visa conditions – decision under review remitted 

LEGISLATION

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

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 6 February 2023 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 visa applicant applied for the visa on 14 November 2022. 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 a visa applicant, who does not hold a substantive visa at the time of the visa application, to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.223(2) because he did not meet the requirements of Schedule 3, criterion 3004.

5. On 20 February 2023 the applicant applied to the Tribunal for a review of that decision.

   BACKGROUND

6. In his application for the subclass 600 Visitor visa application the applicant provided the following information:

   -He was born in 1998 and he is a citizen of India.

   -He is in Australia.

   -He is applying for a further Visitor visa because he wishes to spend Christmas and New Year with his brother in Australia. Additionally, due to the increasing number of COVID cases and his fragile immune system, he had been advised to postpone his travel.  He wished to stay in Australia for up to three months until 2 January 2023

   -He is single.

   -His parents are outside of Australia.

   -He has a brother in Australia who holds a temporary resident (work visa).

   -He has his own funds and his brother will also financially support him in Australia.

7. On 6 December 2022 a Department Delegate wrote to the applicant requesting the following:

   Departmental records indicate that your Visitor (Tourist) (subclass 600) visa ceased on 13 November 2022. At time of your visa lodgement you did not hold a substantive visa so therefore you must respond in writing whether there were factors outside your control preventing you from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the Visitor visa.

8. On 13 December 2022, the applicant provided the following written response to the Delegate:

   The reason for delay in lodging the visitor visa application was due to compelling reasons:

   a. Between 7th November 2022– 17th November 2022, I had developed COVID flue like symptoms and took telehealth advise from my family doctor. I was advised to isolate immediately as my symptoms included: runny nose, cough and sore throat, headache, loss of
   appetite or nausea, fever and shivers. I undertook tests at home using RAT test kit which came out to be positive and showed two red lines for nearly five days continuously from 9th November 2022 – 14^th November 2022. Consequently, due to my worsening health, I was
   unable to seek professional advise on time and was later by only 1 day.

   b. Due to increasing number of COVID cases at this point of time and due to my fragile immune system, I have been advised to postpone my travel.

   I wish to spend some more time to celebrate Christmas and New Year with my brother here in Australia.

   Delegate’s Decision

9. The Delegate was not satisfied there were compelling reasons for the grant of the visa. The Delegate found that there were no factors which prevented the applicant from lodging a further stay visa within the validity of his substantive visa. The Delegate noted the applicant had not provided any evidence that he was hospitalized or in a critical condition relating to Covid-19.  Based on the applicant’s claims and information provided, the Delegate was not satisfied there were factors beyond the applicant’s control which prevented him from lodging the current Visitor (Tourist) (subclass 600) visa application while holding a substantive visa or that there were compelling reasons for the grant of the visa.

10. The Delegate was not satisfied that the applicant met the requirements of criterion 3004 and therefore found that he did not satisfy cl.600.223.

    Information to the Tribunal

11. With his review application the applicant submitted the following additional documents:

    -A screen shot of the number of a of Covid-19 affected cases and daily statistics in Victoria as at 14 November.

    -A letter from a Punjab education institution confirming the applicant was a regular student of the Institute who should complete his course in October 2022.

    -The applicant’s academic record.

12. On 5 April 2024 the applicant’s newly appointed representative provided a written submission to the Tribunal outlining the following:

    On 09 November 2022 as the visa applicant was feeling ill and weak, he instructed his brother (Gursahib Singh) to deal with his representative appointed at the time for visitor visa extension. Gursahib Singh liaised with the agent and discussed about the extension of his brother’s visa until January 2023 so that the applicant could spend few more weeks together until after Christmas.

    During the time because of severe illness due to COVID-19 disease, the applicant was in abnormal physical and mental state. The applicant could not keep track of whether or not his application was being prepared or ever if the process was started by the agent. The applicant was under an impression that his brother was dealing with the agent himself and that he was not allowed to visit agent’s office as he was isolated.

    Because of very limited English language skills the applicant was hesitant to contact the agent himself as he learnt through Gursahib (brother) that agent was a very busy person and hard to get on telephone, so it was best to contact him via email.

    The appointed agent did not contact applicant’s brother Gursahib, as there was some confusion between him and Gursahib, while the applicant was isolated. On 14th November 2022 when Gursahib emailed the agent whether or not his brother’s application was lodged, the agent sends and email to Gursahib to give him a call to discuss further. That’s when Gursahib learnt that his brother accidently overstayed his visa for one day. The agent then decided to go ahead lodge his brother’s visa application as the agent also believed that the circumstances were out of control of the applicant.

    Therefore, it is submitted that further evidence including email communication between Gursahib Singh and the agent can be provided during the hearing in support of this case. The applicant would be happy with the remittal of this case, rather than any specific period of visa grant. This is because they do not wish to have an Australian visa refusal as his Australian immigration and visa history as it directly impacts all future Australian visa applications. The applicant will be happy with 4 weeks of stay in Australia….

    Tribunal hearing

13. The applicant appeared before the Tribunal on 11 April 2024 to give evidence and present arguments. The following is a summary of the information provided at the hearing:

    a.The applicant did not depart Australia by 1 September 2022 because he did not want to impact his Australian immigration record.

    b.He wishes to obtain a four week Visitor visa, or minimum two weeks, so he can arrange his departure to India.

    c.He has not yet purchased a plane to ticket to return home but he will do so and submit evidence of this to the Tribunal.

    d.The Tribunal asked the applicant if he had any medical evidence of his health condition at the time he applied for the Visitor visa.  He responded that he used some home Covid tests. He had fever for a couple of days.  His brother arranged a consultation with the family doctor who wrote the applicant a prescription.  The applicant does not know what medication he was prescribed.  His brother took him to the pharmacy to get the medication. It was for fever and Covid.

    e.The applicant’s consultation with the doctor was on 10 November 2022.  He does not have any record of the consultation. He does not know the name of the doctor. It was the family doctor so he will ask his brother to help him ask the doctor to provide evidence of the consultation.

    f.The Tribunal asked the applicant why he and his brother did not try to lodge his visa application well before his substantive visa ceased. The applicant responded that there was some issue with his previous agent and there was a misunderstanding and the applicant was not able to contact the agent. His brother tried to contact the agent but the agent was busy so did not reply.  He tried by phone and email.

    g.The Tribunal asked the applicant why he did not try to lodge his visa application himself and he responded that he did not have much knowledge. 

    h.It was out of his control because he was sick and his brother was dealing with the agent and there was confusion with the agent who was unable to take their call.  The Tribunal asked the applicant why he did not try to find another agent to lodge his visa application and he responded that they have now changed agent.

    i.The Tribunal clarified with the applicant that he does not have a fragile immune system. He meant that when he had Covid his immunity was low temporarily due to the Covid.  He feels well now.

    j.The Tribunal asked the applicant what the compelling reasons for the grant of the visa are and the applicant responded that he doesn’t want the refusal to affect his immigration history. He wants to be able to obtain a future visa to be able to visit his brother in Australia again. His brother is in the process of obtaining permanent residence here.

    k.The applicant has complied with all his visa conditions. He has been financially supported by his brother in Australia.  He spends his days mostly at home or at the library. He likes reading. On weekends he goes to beaches with his brother. This is all he has done for over a year and a half.  He has an Australian bank account and will submit his bank statements for the past twelve months.

    l.His brother will pay for his plane ticket back to India.

14. On 19 April 2024 the applicant submitted the following materials to the Tribunal:

    -The applicant’s Commonwealth Bank Account statement for the period 3 August 2023 to 3 February 2024.

    -A confirmed Flight Booking record in the applicant’s name from Sydney to Amritsar, India, departing Sydney on 7 May 2024.

    -A letter from Dr Paramjit Singh of the Nirmaan Medical Centre in Amritsar, dated 15 April 2024.  In the letter Dr Singh writes that on 9 November 2022 the applicant had a Telehealth service consultation with Dr Singh regarding the applicant’s positive Covid-19 test result and his symptoms.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. Clause 600.223(2) requires the Tribunal to be satisfied that, if the applicant was in Australia at the time of application and did not hold a substantive visa and the last substantive visa held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, she must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. 

16. The evidence before the Tribunal indicates that the applicant’s last substantive visa was a subclass 600 Visitor visa which ceased on 13 November 2022. He applied for the subclass 600 Visitor visa, currently subject to review, on 14 November 2022 and was not the holder of a substantive visa at the time. Therefore, he is required to satisfy the requirements of cl.600.223(2).

17. In the present case, the issue before the Tribunal is whether the applicant satisfies Criterion 3004. Schedule 3 criterion 3004 is set out in the attachment to this decision.

    Criterion 3004

18. Criterion 3004 applies to an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not subsequently been granted a substantive visa.

19. It requires, amongst other things, the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, 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 entry permits, substantive visas and any subsequent bridging visa held by the applicant.

20. In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it 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 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 further entry permit, while the holder remained in Australia.

    Reasons the applicant was not a holder of a substantive visa on the day of application

21. The applicant’s stated reasons for not holding a substantive visa when he applied for his visa are that his Agent was non-responsive to his and his brother’s enquiries about the visa application; and that he was in poor health because he had contracted the Covid-19 virus in the week leading up to the date of expiration of his Visitor visa.

22. The applicant and his current Agent have provided evidence which the Tribunal accepts that the applicant’s former Agent did not respond to the applicant’s and his brother’s enquiries about the applicant’s new visa application in a timely fashion. The Tribunal also accepts that the Agent’s lack of action contributed to the delay in the applicant’s visa application.

23. The applicant has provided consistent evidence that he was sick with the Covid-19 virus at the time his substantive Visa was due to expire. He has provided a letter from a Doctor to confirm this.  It is unusual that the Doctor the applicant claims to have consulted was based in India and not Australia at the time. If he was the family doctor and the applicant was able to readily communicate with him in their shared language then it is plausible the applicant would have had a telephone consultation with the doctor at the time.  However a Doctor in India would not be able to issue a prescription for medicine to the applicant for use in Australia. The applicant’s evidence about consulting a doctor and being prescribed medication by the doctor therefore remains unclear and questionable.  Despite this unsatisfactory evidence the Tribunal does accept that the applicant was ill with Covid-19 in the week or so leading up to the expiration of his visa. He has consistently maintained this throughout his application and review processes. It was also a period of time in which there were high rates of Covid-19 contraction within Australian urban communities.  The Tribunal therefore gives the applicant the benefit of the doubt that he was ill with Covid-19 at the relevant time.

24. In view of the debilitating effects of the Covid-19 virus the Tribunal also accepts that the applicant may have been too ill to arrange and progress his new visa application in the week before his Visa expired. As he would therefore be reliant upon his agent and brother to successfully lodge his visa application before his substantive visa expired, the Tribunal accepts that the factors of the late lodgement were beyond the applicant’s personal control.

    Compelling Reasons for granting the visa?

25. The Tribunal notes that the applicant lodged his visa application just one day after his substantive visa expired.  The Tribunal considers this a very short delay. The Tribunal also accepts that it would be disadvantageous to the applicant to have a visa refusal on his Australian immigration history record, and that it could create obstacles for his future travel plans to both Australia and elsewhere internationally.  The Tribunal considers this potential adverse impact a somewhat disproportionate outcome for a mere one-day delay in the visa application lodgement.

26. The Tribunal also notes that the applicant intends to depart Australia soon and it accepts his evidence he has purchased a flight departing Australia in approximately two weeks’ time.  The Tribunal notes that if the visa is granted the Minister will specify the period or date for the applicant to remain in Australia.  The Minister would be able to specify a date or period that allows the applicant to remain in Australia until his scheduled departure on 7 May 2024.

27. Viewing the applicant’s circumstances as a whole the Tribunal considers there are compelling reasons for the grant of the visa. This is based upon the mere one day lateness of lodgement, the potential for adverse impact upon the applicant’s future international travel, the applicant’s efforts to cooperate with both the Department and the Tribunal and to arrange his departure from Australia in a timely fashion; and the capacity to restrict a grant of a Visitor visa to the applicant to a short period of time. The Tribunal is therefore satisfied there are compelling reasons for the grant of the visa.

    Substantial compliance with visa conditions.

28. The conditions on the applicant’s last held Visitor visa and subsequent Bridging visas were Condition 8101 (no right to work) and Condition 8201 (limited right to study). 

29. The applicant has submitted a copy of his Australian bank account details for the past year and a half. It records regular ‘gift’ deposits from his brother in Australia and little else by way of income.  In the absence of any evidence to the contrary the Tribunal accepts that the applicant has not worked while he has been in Australia and that he has been financially supported by his brother here.

30. There is no indication before the Tribunal that the applicant has undertaken any study in Australia. On the basis of the evidence before it the Tribunal is satisfied that the applicant has complied with Condition 8201.

31. The Tribunal therefore is satisfied the applicant has substantially complied with his prior visa conditions.

    Entitled to visa on day last held a substantive visa

32. There is nothing to indicate that the applicant would not have been able to satisfy the criteria for a Visitor visa on the last day he held a substantive visa. The Tribunal is therefore satisfied he would have been entitled to a Visitor visa on that day.

    Intends to comply with visa conditions

1. The conditions that are mandatory for a Visitor visa in the Tourist class are Condition 8101 no work and Condition 8201 study up to three months only. 

2. The Tribunal is satisfied that the applicant’s brother can continue to financially support the applicant during his final weeks’ stay in Australia. The Tribunal is therefore satisfied the applicant will not need to work and that he will comply with Condition 8101.

3. There is no indication that the applicant is studying or that he is arranging to study in his next few weeks in Australia. The Tribunal is satisfied the applicant will not study before he departs Australia if he is granted a Visitor visa. The Tribunal is therefore satisfied he intends to comply with Condition 8201.

   Subject to Condition of no further entry permit.

4. The applicant’s past visas were 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.  This requirement therefore does not apply to the applicant.

   Conclusion on Criterion 3004

5. For the above reasons the Tribunal finds that the applicant satisfies criterion 3004.

6. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 600 visa.

   DECISION

7. 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 of Schedule 3 for the purpose of cl 600.223(2) of Schedule 2 to the Regulations.

   Melissa McAdam
   Member

   ATTACHMENT - Extract from Migration Regulations 1994

   Schedule 3

   3004

   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.