Soliyah (Migration)

Soliyah (Migration) [2022] AATA 2678 (10 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Soliyah
Ms Lucy Indriyani
REPRESENTATIVE:  Ms Dhevika Rani Somasundram (MARN:1173426)
CASE NUMBER:  2102886
2102885
HOME AFFAIRS REFERENCE(S):          BCC2021/243100
BCC2020/682274
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Linda Holub
DATE:10 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 10 June 2022 at 1:29pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa – Schedule 3 criteria – whether factors beyond applicant’s control – deteriorating health – ongoing Covid situation in Indonesia – reliance on sister – applicant’s personal responsibility – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 1 March 2021 to refuse to grant the applicants Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are mother and daughter. They applied for the visa on 12 January 2021 and 5 January 2021 respectively. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visa seeking to satisfy the primary criteria in the Tourist stream.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because at the time of lodgement the delegate found the applicants did not hold a substantive visa].
The applicants appeared before the Tribunal on 18 May 2022 to give evidence and present arguments.
Prior to the hearing, the applicants agreed to a combined hearing to be conducted via video. The issues arising are essentially the same for both applicants. They appeared before the Tribunal on 18 May 2022 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video through the Microsoft Teams application. The Tribunal determined it was responsible to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicants and the fact they are located in Perth and the Presiding Member is based in Sydney. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just economical, and quick, and the delay to the matter if the hearing was not to be conducted by video. No concerns were expressed by the applicants in regard to the hearing being conducted in this way.
The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicants were represented in relation to the review by their migration representative who also attended the hearing by video.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKROUND
The first named applicant was born September 1947 in Wonosobo, Central Java, Indonesia and is an Indonesian citizen. She arrived in Australia 5 February 2020 on her Indonesian passport granted December 2019. She is widowed and identified two children, Soesilowati and Australian citizen, and Lucy Indriyani, the second named applicant who is an Indonesian citizen.
The first named applicant arrived in Australia on an FA-600 Visitor – Tourist stream visa due to cease 5 May 2020. On 3 May 2020 the applicant was granted a Bridging visa A visa due to cease 12 June 2020. On 12 June 2020 the applicant was granted an FA-600 Visitor – Tourist stream visa due to cease 4 February 2021.
The second named applicant was born September 1975 in Wonosobo, Central Java, Indonesia and is an Indonesian citizen. She arrived in Australia 5 February 2020, travelling on her Indonesian passport. She is divorced and declared she is self-employed and identified two relatives currently residing in Australia, the first named applicant who she travelled with, and her sister Soesilowati, an Australian citizen.
The second named applicant arrived in Australia on an FA-600 Visitor – Tourist stream visa on 5 February 2020 due to cease 5 May 2020. On 3 May 2020 the applicant was granted a Bridging visa A due to cease 17 September 2020. On 17 September 2020 the applicant was granted an FA-600 Visitor – Tourist stream visa due to cease 17 December 2020. She was granted a Bridging visa on 7 January 2021 which she currently holds.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevantly to this matter cl 600.223 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 the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).
In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.
Does the applicant satisfy the relevant Schedule 3 criteria?
Criterion 3001
In order 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 3001(2), as set out in the attachment to this decision.
The first named applicant lodged an application for a further FA-600 Visitor – Tourist stream visa via form 1419 on 12 February 2021 and her last substantive visa ceased on 4 February 2021. The first named applicant stated the reason for requesting further stay was because she was unable to return home due to COVID pandemic, as Indonesia has reimposed restrictions.
The second named applicant lodged an application for a further FA-600 Visitor – Tourist stream visa via form 1419 on 5 January 2021 and her last substantive visa ceased 17 December 2020.
The second named applicant stated the reason for requesting further stay was “wish to spend Christmas and New Year holidays with my sister and her family. Then book a suitable and safe flight to get back home to Indonesia”.
At the time of each lodgement, the applicants did not hold a substantive visa.
On 8 February 2021 the second named applicant was sent a letter via email requesting she address in writing the reasons she did not hold a substantive visa at the time of lodgement, whether there were factors outside her control preventing them from lodging an application whilst holding a substantive visa, and whether there were compelling reasons for the grant of the visa. On 16 February the applicant’s sister Soesilowati, via their migration agent provided to the Department medical evidence and a statutory declaration that outlined the reasons the application was not lodged while the applicant was the holder of a substantive visa. The submission requested an extension of the visa due to the applicant’s mothers deteriorating health, and the covid situation in Indonesia. Also provided were letters from the applicant’s mothers current treating Doctor in Australia confirming she is receiving care for Type 2 Diabetes and Hypertension.
On 19 February 2021 the first named applicant was sent a letter via email requesting they address in writing the reasons they did not hold a substantive visa at the time of lodgement, whether there were factors outside their control preventing them from lodging an application whilst holding a substantive visa, and whether there were compelling reasons for the grant of the visa. On 25 February the applicant’s daughter Soesilowati, via their migration agent provided to the Department medical evidence and a statutory declaration that outlined the reasons the application was not lodged while the applicant was the holder of a substantive visa. The submission requested an extension of the visa due to the applicant’s deteriorating health, and the covid situation in Indonesia. Also provided were letters from the applicant’s current treating Doctor in Australia confirming she is receiving care for Type 2 Diabetes and Hypertension.
The delegate considered the submissions, and that the first named applicant is suffering from Type 2 Diabetes and Hypertension and was refusing to seek treatment which led to confusion, causing the family to overlook the expiry date of the visa. However, the delegate was not satisfied that the circumstances were beyond their control and prevented them from lodging an application for a new FA-600 Visitor – Tourist visa whilst the applicants were still lawful and the holders of substantive visas, or that there were compelling reasons for the grant of the visa.
The first named applicant last held a substantive visa that ceased 4 February 2021. The applicant lodged the application for a further Visitor (Tourist) (subclass 600) visa via form 1419 on 12 February 2021. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.
The second named applicant last held a substantive visa that ceased 17 December 2020. The applicant lodged the application for a further Visitor (Tourist) (subclass 600) visa via form 1419 on 5 January 2021. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.
As the visa applications were made within 28 days of the relevant day, the applicants satisfy criterion 3001.
Criterion 3003
Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa and, on 31 August 1994, was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.
Criterion 3004
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.
It requires 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.
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.

Information provided to the Department

A written statement dated 8 February 2021 from Soesilowati, the first named applicant’s daughter, was submitted to the Department in support of the application. The submission referred to the first named applicant’s deteriorating health, the ongoing Covid situation in Indonesia, and a subsequent lockdown in the applicants’ home village Wonosobo, Jakarta.
A Statutory Declaration dated 15 February 2021 from the second named applicant’s sister, Soesilowati was submitted to the Department. It states the applicant arrived in Australia with her mother, Soliyah on 4 February 2020 and intended to stay for three months. However, due to the sudden Covid 19 lockdown at the end of March 2020 the applicant was unable to travel back to Indonesia.
A further Statutory Declaration dated 24 February 2021 from Soesilowati was submitted to the Department. It stated the first named applicant intended to stay in Australia for three months, however due to the sudden Covid 19 lockdown at the end of March 2020 she was unable to travel back to Indonesia. The first named applicant’s health has been of concern for her family while she has been in Australia as she has Type 2 Diabetes and deteriorating eyesight. She has been seeing a doctor regularly, however her Diabetes is poorly controlled. She was initially hesitant to seek treatment and started seeing a doctor on 10 January 2021.
It was stated that while Soesilowati has been running her business six days a week, the second named applicant has been caring for their mother. It further states that while the first named applicant’s health was declining, she had been unwilling to visit a doctor resulting in a lot of confusion while they were attempting to find a suitable flight to for them to return to Indonesia with the applicant.
While this was occurring, Soesilowati stated she was working six days a week and caring for her children, she states she overlooked the matter of applying for an onshore Visitor visa for the applicants. Once it was realised the day after the visa expiry date, she arranged to submit a paper application to the Sydney Office of the Department of Home Affairs. Soesilowati has been responsible for ensuring the first named applicant stays in Australia within her visa validity period, she has been visiting Australia over the past seven to eight years and has never overstayed her visa validity dates.
On 18 December 2020 the second named applicant received an email from the Department. Soesilowati immediately tried to apply for a further visa for the second named applicant online. The application was unable to be submitted online, requiring they submit a paper application via form 1419 to the Sydney office of the Department of Home Affairs.
Soesilowati stated she has always ensured the second named applicant stays in Australia within her visa validity period. The applicant has been visiting Australia over the past seven to eight years and has never overstayed her visa validity dates. At the time of the submission, the Covid situation in Indonesia was described by Soesilowati as very bad. The applicants’ hometown of Wonosobo was in a complete lockdown with uncertainty of when it would open up again. Soesilowati stated that with the first named applicants deteriorating health she cannot travel during this dangerous period and states the second named applicant intends to travel back to Indonesia with her mother as soon as it is safe to do so.
The applicants are not English educated and rely on Soesilowati to look after their visa and travel matters. Furthermore, the first named applicant is dependent on the second named applicant during travel, requiring that they travel together. The applicants intend to return to Indonesia together as soon as it is safe enough to do so.
A signed letter dated 19 January 2021 written by the first named applicant’s doctor confirmed the applicant has poorly controlled Type 2 Diabetes and Hypertension and is taking medication for it and the medical letter dated 10 February 2021 confirmed she is under their follow up care for the treatment of Type 2 Diabetes and hypertension since 18 March 2020.
Written evidence provided to the Tribunal
A letter from the first named applicant’s Doctor dated 9 May 2022 was submitted to the Tribunal stating she has been suffering from dementia and her condition has been deteriorating over the last two years. It states he walks with a wheel walker, requires a regular carer and id dependant on family members for her daily activities. Also submitted was a list of current medications, and a mini mental state examination indicates moderate cognitive impairment is present.
A Statutory Declaration was provided by Soesilowati to the Tribunal in respect of both applicants. It is dated 17 May 2022. It outlines much of the information that had previously been submitted to the Department regarding the circumstances regarding the applicants’ previous visa grants, the fact of them having different cessation dates causing confusion, her responsibilities caring for her family, and her husband’s health condition.
In the Statutory Declaration Soesilowati states that the applicants were not in a position to understand anything about their visa or the importance of lodging a visa application before their visas expired and it was totally beyond their control. She wrote they are hoping to return to their home after which is currently under reconstruction will be completed by August 2022.

Evidence provided at hearing

The Tribunal was told that the first named applicant really only understands her local dialect (Javanese) and has hearing problems and will find it difficult to answer detailed questions. It was agreed that as the issues were the same for her and the second named applicant the second named applicant would address the questions put by the Tribunal.
The Tribunal explained that it had taken note of the submissions put forth that her sister generally did their applications and that she was very occupied with various issues including in relation to the health concerns of the first named applicant, her business, her three children and her husband’s health, and asked her what she was doing all the while. She responded that she was at home taking care of her mother. The Tribunal was told that while her sister’s children are aged 20, 18, 17 they require a lot of her attention and are not able to drive themselves, so she had to drive them around.
The Tribunal explained that it appeared that it seemed to be an issue of prioritisation and that perhaps her sister could have lodged their visa applications a few days earlier. The second named applicant responded that her mother had a fall one night and as a result of that she lost track of the need to lodge their applications. The Tribunal referred to her earlier evidence that she was the one focused on her mother’s health and it was her sister’s role to lodge their applications.
The Tribunal explained that while applicants may need the assistance of a family member or agent assist to assist them with the application, applicants have responsibility for their visa status and information provided to the Department.
The Tribunal was told that there were no flights to Indonesia. When asked how this impacted on whether they held a substantive visa, the Tribunal was told they were in the middle of the lockdown and she thinks there was a lockdown in Indonesia too.
Evidence provided by the witness
Soesilowati stated that she wanted to explain that her mother had a fall. She stated that it was her fault that the applicants’ visa applications were not lodged until their previous visas had already ceased. She stated that it was usually her responsibility to lodge their applications.
As to whether there was any evidence available regarding the first named applicant’s fall, the Tribunal was told there was none because they could not take her to the hospital because her health insurance had not started at that time.
The Tribunal was told the applicants had no intention of overstaying but because of the situation at that time they had to stay for the time being. The Tribunal was told there were no flights available for them to return and then the first named applicant had a fall and then a few additional falls. After that, she was unable to take care of herself or feed herself. The witness told the Tribunal that at the moment, the first named applicant is being assessed as to whether she has dementia and Alzheimer’s, and they have an appointment on 11 June 2022 and they will get a diagnosis. She stated even if the decision is to affirm the Department’s refusal, a bit more time will help them as they have to renovate the house of the first named applicant in Indonesia so she will be able to cope at home.
Oral submissions by the migration representative

The applicants’ migration representative told the Tribunal that the Australian resident, Soesilowati looks after the applications and that both she and her husband would be involved. She stated there was some confusion because the cessation dates of the applicant’s visas were different. She told the Tribunal that because the family was focused on other things, they lost track of when the new visa applications needed to be lodged.
The Tribunal explained that while it accepts all of those factors, they do not seem to indicate that it was beyond their control to lodge the applications while they still held substantive visas.
As the applicants did not hold substantive visas at the time of application, criterion 3004 applies to them.
The Tribunal has considered the reasons that have been put forward as to why the applicants were not the holders of substantive visas, and whether there are factors beyond their control. The Tribunal accepts that Soesilowati had responsibility for lodging the applications and that she has done this in the past. The Tribunal accepts that the household is busy, and she has a number of responsibilities competing for her time and the combination of the mother’s deteriorating health and her husband’s heart condition were additional burdens.
The Tribunal also accepts that the two different dates the previous visas were due to cease could have caused some confusion, although considers that this would be manageable had the dates been noted. No evidence was submitted that the second named applicant was unable to prompt Soesilowati to lodge the applications a few days earlier. While the Tribunal has taken into account the cognitive impairment of the first named applicant it also has taken account of the second named applicant’s care for her and Soesilowati took responsibility for the visas, and therefore the Tribunal does not accept that there were factors beyond the control of the applicants.
For the above reasons, the applicants do not satisfy criterion 3004.
For these reasons, the applicants do not satisfy criterion Schedule 3 criterion 3004 for the purposes of cl 600.223.
It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Linda Holub
Member

ATTACHMENT - Extract from Migration Regulations 1994
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.
3003
If:
(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.
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.
3005
A 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.

[2022] AATA 2678

10 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal