Suresh Kumar (Migration)

[2023] AATA 4735

Suresh Kumar (Migration) [2023] AATA 4735 (6 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suresh Kumar

REPRESENTATIVE:  Mr Mohammad Rehan Ahmed (MARN: 0747937)

CASE NUMBER:  2218283

HOME AFFAIRS REFERENCE(S):          BCC2022/3319176

MEMBER:Louise Nicholls

DATE:6 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 December 2023 at 10:27am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa at time of application – Schedule 3 criteria – factors beyond the applicant’s control – contracted COVID-19 – continuing health issues – ‘honest mistake’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 4, PIC 3004

CASES
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of India and is 64 years old. He last arrived in Australia as the holder of a Visitor (Class FA) visa on 12 February 2020. He has held a series of visitor and bridging visas since that date.

2. The applicant applied for a further Visitor (Class FA) visa on 19 August 2022. He provided several documents with his application, including copies of.

   ·            The biodata page of the applicant’s Indian passport issued on 18 November 2019.

   ·            The applicant’s son’s Australian citizenship certificate dated 24 February 2022.

   ·            Confirmation of the applicant’s son’s Australian bank account details.

   ·            The applicant’s son’s statutory declaration made on 19 August 2022.

   ·            Evidence of medical advice given to the applicant regarding his positive COVID-19 test results on 28 February 2022.

   ·            Opinion of a Medical Officer of the Commonwealth dated 10 March 2022 deferring a health assessment.

   ·            Medical certificate from the Woodville Medical Centre dated 26 August 2022.

   ·            Submissions made by the applicant’s representative dated 26 August 2022.

3. On 25 November 2022 a delegate of the Minister for Home Affairs refused to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). 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 that there were factors beyond the applicant’s control which prevented him from lodging the visit visa applicant while holding a substantive visa.

4. This is an application for review, and it was lodged on 12 December 2022.  

5. The applicant appeared before the Tribunal on 5 December 2023 to give evidence and present arguments. The applicant was assisted at the hearing by an interpreter in the Hindi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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).

10. 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.

    Background

11. The applicant gave evidence that he was born in India and lived in the state of Haryana. His wife has passed away and he is a widower. He has three married children; two sons who live in Australia and one daughter who is living in Haryana. One of his sons is working as an Uber driver in Australia and his other son is studying.

12. He has travelled to visit his sons in Australia a number of times. He last arrived in Australia on 12 February 2020 as the holder of a visit visa. He was granted a further two visit visas between November 2020 and 9 August 2022.

    Does the applicant satisfy the relevant Schedule 3 criteria?

    Criterion 3001

13. 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.

14. The evidence before the Tribunal, which was acknowledged by the applicant, was that the applicant’s last substantive visa ceased on 9 August 2022 and his application for a further visit visa was lodged on 19 August 2022.

15. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Criterion 3003

16. 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

17. 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.

18. 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.

19. 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.

20. The Tribunal finds that the applicant’s last substantive visa ceased on 9 August 2022 and his application for a further visit visa was lodged on 19 August 2022.

    Was the applicant not the holder of a substantive visa at the time of application due to factors beyond his control?

21. The applicant provided a statutory declaration made by his son, his representative’s submissions and documents to support his claim that he had contracted COVID 19 in February 2022 and had continuing health problems due to his illness.

22. The applicant’s representative submitted that the applicant had a difficult time when he contracted COVID 19 and then had to undergo a later medical examination to exclude the possibility that he had tuberculosis. His representative submitted that he did not realise his visa had ceased on 9 August 2022 due to his continuing health issues and that he made his application as soon as possible on 19 August 2022.

23. When asked about prior successful applications for onshore visit visas the applicant stated that he did not know anything about those applications as they had been handled by someone else, that is, family members.

24. At the Tribunal hearing the applicant stated that he failed to apply for a visit visa while he still held a substantive visa because he had been unwell with COVID 19 and he missed the date for applying for a further visa. He stated it was an honest mistake. His representative submitted that the applicant had nothing to gain by making his application.

25. The Tribunal pointed to the NSW Department of Health document provided by the applicant which showed he had COVID 19 in February and early March 2022 some five months before his visa ceased.

26. The applicant’s representative submitted that the applicant had continuing health issues related to COVID 19 at the time his visa ceased. The medical evidence provided by the applicant was a medical certificate from his general practitioner in August 2022 which stated he had COVID 19 a few months back and had been tired since then. He also had stress and anxiety and needed the support of his family.

27. In the earlier submissions the applicant’s representative referred to an assessment of the applicant’s health status by the Medical Officer of the Commonwealth and that fact that the assessment had been deferred. However, no mention of this health assessment was made during the hearing and its relevance to the issues before the Tribunal was not explained. It may be that it was provided to give some context to the applicant’s overall health situation.

28. 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 Schedule 3 criterion 3004. While the application in that case was dismissed by the Court, the judgment provides guidance on the interpretation of the test of factors beyond the control of a person.

29. Smith FM, referring to the judgement of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17] of Su that two useful points emerge from that case:

30. 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.

31. The Tribunal accepts that the applicant is somewhat reliant on family members to assist with his visa applications. However, there is no evidence that there were any factors which prevented the applicant discussing his visa status with family members and ensuring that he applied for the visa within the requisite time limits. The Tribunal accepts that the applicant had contracted COVID 19 in February/March 2022 but some five months had passed since he had contracted that illness. The medical evidence refers to continuing tiredness, anxiety and stress however, there is no evidence which might support a lack of capacity or continuing serious illness in August 2022, around the time when the applicant’s visa was due to cease.

32. The evidence given by the applicant indicates that the oversight took place out of an “honest mistake” and the Tribunal accepts that evidence.

33. However, the Tribunal considers that the applicant’s failure to apply for a visit visa while he was the holder of a substantive visa was not caused by factors beyond the applicant’s control. It was within the applicant’s control to be aware of the Department’s visa requirements by discussing the requirements with his family members and ensuring that he had complied with those requirements. Further there were no obstacles to him applying for the visa. While in Australia from February 2020 the applicant had previously applied for further visit visas while holding a substantive visa and had been granted those visas.

34. It appears that the applicant has been a frequent visitor to Australia to see his sons and that during those visits he has been compliant with previous visa conditions. Given the circumstances at the time of the application, that is, the applicant’s health situation, some continuing anxieties and concerns arising from the COVID 19 pandemic, the short time the applicant did not hold a substantive visa and the prompt application for a bridging visa following the applicant’s realisation that his visa had ceased should be regarded sympathetically by the Department in the event of future visit visa applications. 

35. For the above reasons, the applicant does not satisfy criterion 3004.

    Conclusion

36. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl 600.223.

37. 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

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

    Louise Nicholls
    Senior 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.