Singh (Migration)
[2023] AATA 1365
•15 May 2023
Singh (Migration) [2023] AATA 1365 (15 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Sukhwinder Singh
CASE NUMBER: 2110522
HOME AFFAIRS REFERENCE(S): BCC2021/29478
MEMBER:Rachel Da Costa
DATE:15 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Statement made on 15 May 2023 at 10:08am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made after last substantive visa ceased – factors beyond applicant’s control – ill health and daughter’s surgery – advance notice of surgery and possibility of seeking assistance with application – not necessary to consider compelling reasons for granting visa – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3004(c)CASES
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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2021 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a 55-year-old citizen of India. He last arrived in Australia on 15 February 2020 as the holder of a Visitor visa. That visa ceased on 15 February 2021. On 23 February 2021, the applicant lodged an application for a further Visitor visa.
On 15 March 2021, the Department wrote to the applicant noting that the applicant’s Visitor visa ceased on 15 February 2021 and requested further information on factors outside the applicant’s control that prevented him from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa. The applicant did not respond to this letter.
On 27 July 2021, the delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because he did not satisfy the Schedule 3 criterion 3004.
On 14 August 2021, the applicant applied for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant was invited to appear before the Tribunal on 5 May 2023 to give evidence and present arguments, however due to problems with the availability of the interpreter the hearing had to be rescheduled. This hearing was going to be conducted using the Microsoft Teams (MS Teams) videoconferencing platform as the applicant is located in Perth and the Tribunal member is located in Sydney.
The applicant appeared before the Tribunal on 12 May 2023 to give evidence and present arguments. He chose to appear by telephone. Given the nature of this matter, the Tribunal considered this to be appropriate. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Clause 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.
The delegate found that the applicant did not satisfy the requirements of criterion 3004.
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.
The issue in this case is whether the applicant meets criterion 3004. Criteria 3003 and 3005 are not relevant to this review.
Background
In the hearing, the applicant provided the following information. He is an Indian citizen. He does not have any immediate family living in India at the moment. In India, he used to live with his wife and son.
His wife, son, daughter, son-in-law and their baby are all living in Australia now. His daughter is an Australian citizen. He does not know what kind of visas his wife and son hold but he says they hold the same type. His wife has been in Australia since November 2019 and her visa is ‘under processing’. He and his son were supposed to return to India but because of the Covid-19 pandemic they could not go back.
In Australia, the applicant has been staying with his daughter whose name is Gagandeep Kaur. He mostly stays at home with the family and sometimes goes out to places like the park.
Does the applicant meet the requirements of cl 600.223?
The applicant gave evidence that he was in Australia at the time he applied for his Visitor visa on 23 February 2021 and agreed that his previous Visitor visa had ceased on or about 15 February 2021. Records of the Department of Home Affairs confirm this.
Therefore, the Tribunal finds that the applicant was in Australia at the time of application, and did not hold a substantive visa and the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. On that basis, the applicant must satisfy Schedule 3 criteria 3001 and 3004.
Does the applicant meet criterion 3001?
Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day. The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.
The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 15 February 2021 and he lodged his application for a Visitor visa (which is the subject of this application for review) on 23 February 2021. Therefore, his application was lodged within 28 days of the relevant day and he meets criterion 3001.
He must also meet criterion 3004.
Does the applicant meet criterion 3004?
As set out above, criterion 3004 includes a number of requirements. Criterion 3004(c) requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control.
In his Visitor visa application form 1419 lodged on 23 February 2021, the applicant states that “due to travel restrictions and outbreak of Covid neither I am able to travel back nor is it safe as new cases have been recorded thus I wish to extend my visa in order to stay safe.”
On 1 May 2023, the applicant submitted the following documents to the Tribunal:
· Letter from the applicant dated 28 April 2023;
· Letter to Gagandeep Kaur dated 20 January 2021 from the Elective Surgery Waitlist, Rockingham General Hospital, confirming details for her admission to Rockingham General Hospital on 10 February 2021 for a day procedure;
· Medical certificate dated 11 February 2021 from Rockingham Peel Group for Gagandeep Kaur stating that she was unfit from 10 February 2021 to 24 February 2021 with remarks ‘light duties for 6 weeks, (lift no heavier than 5 kg)’.
In his letter dated 28 April 2023, the applicant states that he entered Australia on a Visitor visa and held it until 15 February 2021. Due to some unavoidable circumstances he could not leave Australia on time and became unlawful for eight days. After that, he lodged another Visitor visa application on 23 February 2021 and was refused a visa under Schedule 3 criterion 3004. The applicant goes on to explain as follows (unedited):
I would like to mention that nearing 15 February 2021, I was quite unwell and was unable to travel due to ill health. In that period of time, I did not know that my visa had finished and I had to exit the country. It was an unintentional mistake that happened without knowledge and I had no intentions for breaking the rules and not comply with visa conditions. When I felt better I realised that my visa had finished. Also my daughter Gagan had undergone a surgery around 10 Feb 2021, due to which we were all very busy and mentally occupied. So our circumstances during those times were very stressful. In regard to these kindly consider the compassionate circumstances that applying for the visa got delayed and I was unlawful for few days.
…
In the Tribunal hearing, the Tribunal discussed with the applicant the circumstances that led to his Visitor visa expiring before he lodged his application for a further Visitor visa. The applicant gave evidence that he was aware of his visa expiry date before it expired. He said they were going to apply for another visa for him but prior to his visa expiring, his daughter had to be hospitalised and she is the one who looks after all his visa arrangements. His daughter has taken responsibility for looking after his visa situation. The applicant said that his daughter was in the hospital, her baby was little and he was looking after the baby, and then he got sick and was not able to go to the hospital. He said that his daughter having to be in the hospital is why it all got delayed. The Tribunal noted that the medical documents provided by the applicant show that his daughter went into hospital on 10 February 2021, which was five days before his visa was due to expire. The applicant said that he had also fallen sick. He thinks it was on 11 February 2021. He had a high temperature and had to get medicine from the pharmacy.
The Tribunal explained to the applicant that as the visa holder, it is very important that he takes responsibility to understand the conditions of his visa, including its expiry date, and makes sure that he complies with those conditions. The Tribunal reminded him that the visa is his visa and not someone else’s visa. The Tribunal put to the applicant that it might find that he knew the date his visa was going to expire and he could have taken steps to make his new visa application in plenty of time before his existing visa expired. He could have diarised the expiry date and kept track of time so that he knew when the expiry date was approaching and made sure the application was lodged in plenty of time. The Tribunal notes that the letter from the hospital about the applicant’s daughter’s day procedure is dated 20 January 2021, which indicates that she had plenty of warning about the upcoming surgery on 10 February 2021.
The Tribunal also put to the applicant that if his daughter was sick, he could have sought help from someone else to assist him to make his visa application. He responded that because of Covid-19 they could not go and see someone. The Tribunal suggested to him that he could have sought advice from someone over the phone or online and it was not necessary to see someone in person. The Tribunal also noted that his daughter’s hospitalisation and him getting sick only happened a few days before his visa was due to expire and that if he had not left making the new application until so close to the visa expiry date, then his daughter would have been able to help him. The applicant responded “okay”. The Tribunal also reminded him that in his letter dated 28 April 2023, he said that missing the visa expiry date was an unintentional mistake.
The Tribunal put to the applicant that it might find that what happened was not due to factors beyond his control. The applicant responded that his daughter was handling everything, she went to hospital and it got delayed. He also noted that he has applied for a parent visa and he has done everything right.
Was the applicant not the holder of a substantive visa when he applied for a Visitor visa because of factors beyond his control?
In considering whether there are reasons which constitute 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.
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.
Smith FM goes on to refer to further discussion by Mansfield J making the point at [18] that:
it is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a 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 Tribunal has considered all the evidence of the applicant as set out above. The applicant agreed that he knew the expiry date of his Visitor visa in advance of its expiry on 15 February 2021. He gave evidence that his daughter was the person who looked after his visa applications. The Tribunal accepts that the applicant’s daughter was admitted to hospital on 10 February 2021 for a procedure and after that the applicant felt unwell and he was busy helping to look after his grandchild after his daughter’s surgery. However, the Tribunal does not accept that in these circumstances it was beyond the control of the applicant to take steps to ensure that his new Visitor visa application was lodged before his existing Visitor visa expired.
The Tribunal notes that the letter from the hospital about his daughter’s admission is dated 20 January 2021 which indicates that the applicant’s daughter had plenty of warning of her upcoming hospitalisation. The Tribunal considers it reasonable to conclude that the applicant was also aware of the upcoming surgery given he was living with his daughter and her family. There is no suggestion that the admission to hospital was a sudden emergency, for example. The Tribunal considers that the applicant, with the assistance of his daughter, could have applied for his new Visitor visa in advance of his daughter’s scheduled surgery (which was five days before the visa expiry date) and this would have avoided the problem from occurring. The applicant did not dispute this. Alternatively, if the applicant was concerned that his daughter was too unwell to help him with his visa application before the expiry date, he could have sought assistance from someone else to lodge the application. The Tribunal does not accept that the applicant himself was so unwell or otherwise lacked capacity that he was prevented from doing this or that it was beyond his control. The applicant stated in his letter to the Tribunal that missing the expiry date was an unintentional mistake. The Tribunal acknowledges that the applicant’s circumstances are regrettable, but it considers that it was within the applicant’s capacity to have avoided this situation with his visa from arising and that what happened was not beyond his control.
For the reasons explained above, the Tribunal does not accept that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control.
Conclusion
Accordingly, the Tribunal finds that the applicant does not meet the requirement in criterion 3004(c). This being the case, it is not necessary for the Tribunal to consider and make findings about whether there are compelling reasons for granting of the visa under criterion 3004(d).
Therefore, the Tribunal is not satisfied that the applicant meets the requirements of cl 600.223.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Rachel Da Costa
Member
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
0
2
0