Sukhjinder Kaur (Migration)

Sukhjinder Kaur (Migration) [2024] AATA 3087 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sukhjinder Kaur
REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)
CASE NUMBER:  2307259
HOME AFFAIRS REFERENCE(S):          BCC2023/1879086
MEMBER:Melissa McAdam
DATE:19 July 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:
·cl 600.223 of Schedule 2 to the Regulations.

Statement made on 19 July 2024 at 12:04pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant did not hold a substantive visa at the time of application – passport was stolen – factors beyond her control – a compelling reason to grant the visa – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 3, Schedule 2, cl 600.223

STATEMENT 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 10 May 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review.
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.
Background
The applicant last arrived in Australia on a Visitor visa which expired on 19 March 2023.
The visa applicant applied for the visa, the subject of this review, on 22 March 2023. 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.
On 28 March 2023 the delegate wrote to the applicant requesting further information as follows:
Departmental records indicate that your Visitor (Tourist) (subclass 600) ceased on 19 March
2023. 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.
On 10 April 2022 the applicant’s representative provided the following written response:
…
Our client, Sukhjinder Kaur, is currently on a Bridging Visa C. Her current tourist visa application was applied on 22 March 2023. The applicant was here on a Tourist Visa to visit her son. She arrived in Australia on 20 December 2022. She stayed here for around 3 months to spend time with her son and his family.
It was a three months stay visa for her. Her return ticket was fixed as well and she was supposed to return back to India on 11 March 2023. Please find attached the return ticket for your reference.
However, something unfortunate happened. There was a theft at her son’s house on 25 February 2023 and along with other goods, her passport was stolen. Due to this reason, she was unable to return back at the proposed return date as she did not have her passport. They filed a complaint to the police about the theft. Please find attached the police complaint evidence for your reference.
She approached the embassy as well to issue her a new passport. However, in the meantime, police have caught the thief and recovered the goods. Police has confirmed that they have her passport, however, due to legalities they have not handed over the passport yet. As her passport is recovered, the embassy will not issue her a new passport. Therefore, she is stuck.
They had filed a complaint to the police as well to recover the passport. However, due to all this situation, she was not able to travel back to India and she also did not apply for the further visa.
…
I want to state here that the applicant’s circumstances were beyond her control. The applicant did not intentionally become a person without a substantive visa.
As mentioned above, the applicant was all set to return back to her country after spending time with her son and his family. The return ticket was booked for 11 March 2023 as well. However, due to the theft at her son’s house, her passport was stolen. They filed a complaint to the police. The police later found the stolen passport, but they have not yet provided the passport to the applicant. As the applicant did not have her passport with her, she was unable to travel back to India.
Amidst all this hassle, the applicant was unable to lodge a further visa due to the passport issue.
Therefore, we submit that due to the theft of her passport, she was unable to return back. The applicant became a victim of an unfortunate event which led to the aforementioned circumstances which were beyond her control.
We contend that the applicant’s circumstance is genuine which caused the applicant to become an illegal entrant or a person without a substantive visa and the circumstances were beyond her control.
The representative attached a copy of the applicant’s flight booking and an undated incident note from Victorian Police at Darebin CIU recording an incident number but no details about the incident.
Delegate’s Decision
The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because the delegate was not satisfied there were factors beyond the applicant’s control which prevented her from lodging the current visa application while holding a substantive visa. The delegate considered that the applicant could have lodged a valid application online by entering her valid passport number, before her substantive visa expired.
Information to the Tribunal
On 24 June 2024 the Tribunal wrote to the applicant asking her to provide further written information from the police about the theft of her passport, the return of her passport and any compelling reasons for the grant of the visa.
On 8 July 2024 the applicant’s Representative provided the following written response:
-A written submission by the Representative.
-Another copy of the applicant’s fight booking for 11 March 2023.
-Another copy of the undated Police Incident note.
-A copy of an email message date 2 June 2023 from Manpreet Singh to a person at Victoria Police asking for the return of items reported as lost on 25 February 2023, including his mother’s passport.
-A Victoria Police ‘acknowledgement of property returned’ document dated 22 June 2023 , which lists property returned to the applicant’s son, Manpreet Singh. The list does not include any reference to the applicant or her passport but does refer to ‘Identity Documents’.
In the applicant’s Representative’s submission he provides the following additional information:
…
Our client's son contacted the police station multiple times but was unable to obtain information about the stolen goods, including our client's passport at the time of its theft. We are attaching our client's email to the police department as evidence of the claims.
After multiple visits and follow-ups, the police finally returned the stolen goods to our client's son on June 22, 2023. Attached for your review is the release letter of stolen goods issued by Victoria Police.
It is evident that the stolen passport was only returned to our client on 22 June 2023. However, her visa was expiring in March 2023. As she did not have her passport with her, she was unable to apply for a further visa on time due to all the prevailing circumstances.
…
Our client currently holds a Bridging Visa C. Leaving Australia while on BVC would render her unable to re-enter Australia on a valid visa. She will be asked to explain her reasons for being unlawful and departing on BVC. The department not being satisfied could render her unable to return. It is important here to highlight the fact that eventually our client must travel to Australia as her son and his family reside in the country. Thus, maintaining her visa status is of utmost significance for her future travel plans.
Since the visa refusal, our client is experiencing significant stress as a result of her visa predicament, particularly as she is not able to return back to her home country despite of urgency. She has previously endured considerable stress when her passport was stolen, leaving her without a visa for several days while in Australia. Considering her age, it is distressing for her to undergo these challenges.
We believe that these are the compelling reasons for the grant of the visa as if this case is resolved, she will regain the ability to travel to her home country without jeopardizing her visa status. Furthermore, this will allow our client the liberty to reunite with her son and his family in Australia in the future as well. This resolution will undoubtedly alleviate the adverse circumstances she has been enduring. …
CONSIDERATION OF CLAIMS AND EVIDENCE
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
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.
In this matter the relevant day is the date on which the applicant last held a substantive visa. The relevant day is therefore 19 March 2023. The applicant lodged her Visitor visa application, the subject of this review, on 22 March 2023. As the visa application was made within 28 days of the relevant day, the applicant satisfies 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 was 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.
The applicant did not hold a substantive visa at the time she lodged her subsequent Visitor visa application.
The applicant has claimed that her passport was stolen in late February 2023 and not returned to her by police until June 2023. Because her passport was recovered by the police the Indian Embassy would not issue the applicant a new passport. The applicant has provided evidence to and from Victorian police which supports her claims regarding the theft of her passport. The Tribunal accepts this happened.
The Tribunal also accepts that the applicant had planned to depart Australia before her Visitor visa expired however could not because her passport had been stolen. The Tribunal accepts that in and around the time the applicant’s substantive visa was expiring there was a great deal of uncertainty as to whether or not the applicant would be able to leave Australia before her Visitor visa expired, given it was unknown whether or not she would recover her passport in time.
The Tribunal accepts that the applicant’s lack of possession of a valid passport at the time her substantive visa expired impeded her ability to lodge another visa application before her substantive visa expired. Given her passport had been stolen there was uncertainty as to whether the passport continued to be her ‘valid passport’, particularly in the event that the passport remained stolen and was not recovered or was not returned to her by police.
The Tribunal is therefore satisfied that the applicant did not hold a substantive visa at the time she applied for her subsequent Visitor visa largely because of factors beyond her control.
The Tribunal notes that the expiry date of the applicant’s substantive visa fell on a Sunday and that she subsequently lodged her visa application just a few days later. The Tribunal considers this a very short delay.
As the victim of a criminal act, the applicant’s failure to depart Australia before her substantive visa expired and for the ensuing few months, was not due to fault on her part given she did not possess a passport during this time. The Tribunal takes into account the difficulties and ongoing stress the applicant has faced.
The grant of a short-term Visitor visa now would allow the applicant to make necessary arrangements to depart Australia without jeopardising her ability to return to Australia to visit her son and family here. The Tribunal considers this an appropriate outcome given the lack of fault on the applicant’s part and the difficult situation created by the theft of her passport in Australia.
The Tribunal considers the combination of the above factors amount to a compelling reason to grant the visa.
There is no indication that the applicant has breached any visa conditions while she has been in Australia. On the evidence before it the Tribunal is satisfied the applicant has complied substantially with the conditions of her last substantive visas and subsequent bridging visa.
There is nothing to indicate the applicant would not satisfy the criteria for a grant of a Visitor visa at the time her substantive visa expired. The Tribunal is therefore satisfied a Visitor visa could be granted to the applicant on that date.
A Visitor visa would be subject to Condition 8101 (no work) and 8201 (less than 3 months study). There is nothing before the Tribunal to indicate the applicant needs or wants to work or study in Australia. The Tribunal is therefore satisfied the applicant intends to abide by Conditions 8101 and 8201 during a further short stay in Australia.
The applicant’s last visa was not subject to entry permit restrictions.
For the above reasons the applicant satisfies criterion 3004.
Criterion 3005
Criterion 3005 requires that 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 Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or regs 35AA, 42(1A) or 42(1C) of the Migration (1989) Regulations.
There is no record of the applicant being granted a visa previously on the basis of satisfaction of the criteria set out in Schedule 3 to the Regulations, or Schedule 6 to the Migration (1993) Regulations, or regs 35AA, 42(1A) or 42(1C) of the Migration (1989) Regulations.
Accordingly, the applicant satisfies criterion 3005.
Conclusion
For these reasons, the applicant satisfies the Schedule 3 criteria for the purposes of cl 600.223.
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
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:
·cl 600.223 of Schedule 2 to the Regulations.
Melissa McAdam
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.

[2024] AATA 3087

19 July 2024

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