Singh (Migration)

[2018] AATA 448

Singh (Migration) [2018] AATA 448 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranjit Singh

CASE NUMBER:  1708432

DIBP REFERENCE(S):  BCC2017/1059784

MEMBER:Linda Symons

DATE:27 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2018 at 3:02pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Previous visitor visa expired – Wished to visit religious places in Australia – No compelling reasons for a second Visitor visa

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.223 Schedule 3 Criteria 3001, 3003, 3004, 3005

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 Immigration on 29 March 2017 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Home Affairs (the Department) for the visa on 16 March 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four 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 (the Regulations). Relevantly to this case, they include cl.600.223(2), which requires the visa applicant to satisfy the Minister that, if he was in Australia at the time of application and did not hold a substantive visa, the last substantive visa he held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and he satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

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

5. The applicant appeared before the Tribunal on 23 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. The issue in this case is whether cl.600.223(2) is met, which 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, the last substantive visa he held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and he satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

9. The records of the Department indicate that the applicant was in Australia at the time of application on 16 March 2017. He has filed with the Tribunal a copy of the Department’s Decision Record dated 29 March 2017 which indicates that the last substantive visa he held was a subclass 600 Visitor visa that expired on 9 March 2017. Accordingly, the Tribunal finds that the applicant was in Australia at the time of application, 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. Therefore, he satisfies the requirements of cl.600.223(2)(a).

10. In considering whether the applicant satisfies the requirements of cl.600.223(2)(b) the Tribunal has considered Schedule 3 criterion 3004.

    Is criterion 3004 met?

11. In this case, the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994 and must therefore satisfy the Minister, or in this case the Tribunal, that he meets the requirements of criterion 3004(c), (d), (e), (f), (g) and (h) as referred to in the Attachment below.

12. Criterion 3004(c) requires that applicant to satisfy the Minister, or in this case the Tribunal, that he is not the holder of a substantive visa because of factors beyond his control. He has written to the Department and to the Tribunal stating that there are two reasons why he was not the holder of a substantive visa. He stated that his knowledge of English is limited and he depended on someone else to explain to him the letter granting him the Visitor visa. He stated that the letter indicated that the last date on which he could arrive in Australia was 7 October 2017 and his friend told him that his visa was valid for 1 year.

13. In his letter, the applicant also stated that he did not feel well at the beginning of March 2017. He stated that he felt weak, giddy and feverish. He stated that people in the community offered to take him to the doctor but he thought he would feel better if he had a rest. He stated that he was given some medicine and was bedridden for almost 10 days. He did not provide the Tribunal with any medical evidence in relation to being ill at that time.

14. The Tribunal discussed this letter with the applicant. He stated that he did not consult a doctor when he got sick and took some homeopathic medicine that was given to him by the person he was staying with. His migration agent submitted that he had provided the Department with a letter from the person he was staying with.

15. Following the hearing, the Tribunal was provided with a copy of a letter dated 21 March 2017 from Jagraj Singh. In his letter, Mr Singh stated that the applicant was ill from 5 March to 12 March with a headache and fever. He stated that he did not wish to go to a doctor so he rested and took Panadol.

16. The Tribunal has considered the above evidence and is not satisfied that the applicant is not a holder of a substantive visa because of factors beyond his control. Firstly, if he received a letter from the Department setting out the terms and conditions of his previous Visitor visa and he did not have sufficient knowledge of the English language to read and understand it, then it was his responsibility to ensure that he sought the assistance of a person who had sufficient knowledge of the English language to be able to accurately translate the letter to him. It was also his responsibility to ensure that, after he came to Australia, he was fully aware of the conditions of his Visitor visa and complied with those conditions. The Tribunal does not accept that these are factors beyond his control.

17. Secondly, the Tribunal is of the view that if the applicant wished to apply for another Visitor visa in order to extend his stay in Australia, then the onus was on him to ensure that he applied for the second Visitor visa well before the expiry of his first Visitor visa. Had he done so, arrangements would have been put in place to apply for this Visitor visa prior to him becoming ill on 5 March 2017.

18. The Tribunal has had regard to the submissions made by the applicant’s migration agent.

19. The Tribunal is not satisfied, on the evidence before it, that the applicant is not the holder of a substantive visa because of factors beyond his control. Therefore, the Tribunal finds that he does not satisfy criterion 3004(c).

20. Criterion 3004(d) requires that applicant to satisfy the Minister, or in this case the Tribunal, that there are compelling reasons for granting the visa. In his application for a second Visitor visa, he stated that his reason for requesting a further stay in Australia was because he came here to visit all the Sikh temples in Australia. In his letter to the Department and the Tribunal, he stated “I have come so far from home and would like to finish what I had initially promised myself, to visit all the religious places in Australia. I do not know when I will ever come back again and therefore request you to grant me an extension.” The Tribunal discussed this with him during the hearing.

21. The Tribunal asked the applicant how many Sikh temples there are in Australia and he answered seven or eight. When asked in what States or Territories they are located, he responded that there are eight Sikh temples in Sydney. When asked how many he had visited, he responded two. In view of the fact that he has been in Australia since 9 December 2016 and has only visited two Sikh temples during the last fourteen months despite his claim that there are eight Sikh temples in Sydney, the Tribunal has serious doubts that he came to Australia for the purpose of visiting all the Sikh temples in Australia.

22. The Tribunal asked the applicant why there are compelling reasons for granting him this visa. He responded that he would like to stay in Australia to provide help to the older generation. When asked why he needs to do that in Australia and not, for instance in his homeland in India, he responded that he gets affection from people in Australia. When the Tribunal raised as an issue with him its doubts that these were compelling reasons for granting him the visa, he responded that he can do this work in India and the reason is not compelling but he would like to stay in Australia.

23. The Tribunal is not satisfied, on the evidence before it, that there are compelling reasons for granting the visa. Therefore, the Tribunal finds that the applicant does not satisfy criterion 3004(d). As he does not satisfy criterion 3004(c) and criterion 3004(d), he is unable to satisfy criterion 3004 and the Tribunal finds accordingly. As he does not satisfy criterion 3004, it is not necessary for the Tribunal to consider the other criteria in Schedule 3.

24. In view of the above findings, the Tribunal finds that the applicant does not satisfy the requirements of cl.602.223(2)(b).

25. Given the findings above, the applicant does not meet the requirements for the grant of the visa and the decision under review must be affirmed.

    DECISION

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

    Linda Symons
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 2

    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.

    Schedule 3

    3001 (1)     The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)     For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    (d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)the day when that last substantive visa ceased to be in effect; and

    (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    3003If:

    (a)     the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)    on 31 August 1994, the applicant was either:

    (i)an illegal entrant; or

    (ii)the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)     the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without 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 the conditions that apply or applied to:

    (i)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

    (ii)any subsequent bridging visa; and

    (f)     the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    the last entry permit (if any) held by the applicant was not granted 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.

    3004If 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.

    3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)     this Schedule; or

    (b) Schedule 6 of the Migration (1993) Regulations; or

    (c)     regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

    Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.