Sutrisno Sastroadjijoyo (Migration)

[2022] AATA 2957

Sutrisno Sastroadjijoyo (Migration) [2022] AATA 2957 (20 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Awandi Sutrisno Sastroadjijoyo

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  2200677

HOME AFFAIRS REFERENCE(S):          BCC2021/2128941

MEMBER:Jane Marquard

DATE:20 July 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 20 July 2022 at 12:30pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – period of unlawful residence – impact of the COVID19 pandemic – travel restrictions – compassionate circumstances – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criteria 3001, 3003-3005

CASES

BET16 v MIBP
SZRHA v MAIC [2013] FMCA [2016] FCCA 3165    

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 Home Affairs on 7 January 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a man from Indonesia. He first arrived in Australia on 19 November 2018 on a Visitor (FA 600) visa. He departed on the date of expiry of the visa, 17 February 2019. He returned to Australia on 30 August 2019 on a further Visitor (FA 600) visa. This visa expired on 26 November 2019 and he departed on that day. The applicant was granted a further Visitor (FA 600) visa and returned to Australia on 4 February 2020. This visa ceased on 4 May 2020. The applicant remained in Australia unlawfully until 19 March 2021 when he was granted a bridging visa.

3. The visa applicant applied for the visa the subject of this review on 4 November 2021. 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.

4. 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, cl 600.223 requires that if the applicant was in Australia at the time of application and did not hold a substantive visa, he must satisfy Schedule 3 criteria, including criterion 3001. Criterion 3001 requires that an applicant apply for the visa within 28 days of the expiry of the substantive visa.

5. The delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the applicant did not satisfy cl 600.223 of Schedule 2 to the Regulations because at the time he applied for the visa he did not hold a relevant substantive visa and he did not satisfy criterion 3001 in Schedule 3 to the Regulations.

6. The applicant was invited to a hearing on 15 June 2022. This hearing was postponed on compassionate grounds at the request of the applicant. The applicant was then invited to appear before the Tribunal at a re-scheduled hearing on 7 July 2022 to give evidence and present arguments in relation to issues arising in the review. On 6 July 2022 a request was received from the applicant’s representative, Karyn Anderson of Clothier Anderson Immigration Lawyers, for the matter to be decided on the papers without the need for a hearing. The representative stated that ‘Awandi’s close friend, Mr Bruce Clezy, has very recently passed away and Awandi is grieving this loss and understandably focussed on that process. Awandi wishes to receive a decision from the Tribunal so that he may seek Ministerial intervention to grant him a visa in the public interest in due course’.

7. In light of the consent to waive the hearing, the Tribunal has proceeded to determine the matter without a hearing in accordance with s.360(2)(b) of the Act.

   FINDINGS AND REASONS

   Findings on cl 600.223 of Schedule 2 to the Regulations

8. The issue in the present case is whether the applicant meets the requirements of cl 600.223 of Schedule 2 to the Regulations. For the following reasons, the Tribunal has concluded that the applicant does not satisfy cl 600.223 and that the decision under review should be affirmed.

9. 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.

10. As confirmed in migration records, the applicant was in Australia at the time he applied for the visa (4 November 2021). Records confirm that he did not hold a substantive visa at that time as he held a bridging visa, which is not a substantive visa. The last substantive visa he held was a Visitor FA 600 visa, which expired on 4 May 2020, and is not one of the visas specified in cl 600.223 of the Act. The issue is therefore whether the applicant satisfies the Schedule 3 criteria. 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) and includes the last day when the applicant held a substantive visa, in this case 4 May 2020.

11. On 12 November 2021, the applicant was invited to make submissions to the Department. On 19 November 2021 the applicant made submissions to the Department through his representative. His representative submitted that it was conceded that he did not meet Schedule 3 criteria 3001 but he did meet criteria 3003 and 3005. It was also submitted that he meets criterion 3004. In regard to criterion 3004, it was submitted that he was not the holder of a substantive visa because of factors beyond his control. Emails in support were provided by Bruce Clezy and Craig Langdon and a medical report was provided for Bruce Clezy. Mr Langdon said that around the time his visa expired in May 2020 he wrote to the Department stating that the applicant could not return to Indonesia as he could not travel because of the pandemic. The email address he used was provided to him by the Department after a telephone call. He said that unfortunately he could not locate the email as he no longer had access to the addresses used. He said that he never got a response from the Department. He said that he did not push the matter as there were ‘unchartered waters’ during the pandemic. He said that the applicant trusted him to assist him. He said that Melbourne had been in lockdown for 18 months and it was extremely difficult to engage with the Department. He said that earlier in the year he became concerned and called the Department a few times, but ‘it was ascertained that no record of the email could be found’. He said that ‘the Department ‘seemed to put the matter to rest’ and the applicant was granted a bridging visa E on 11 March to 19 June 2021’. He said that over that period he had checked flights for applicant to Indonesia but they were very expensive and of long duration. He said that because of the lockdown the applicant could not find work. The representative submitted that the applicant spoke limited English and relied on Mr Langdon who was unable to get assistance from the Department.

12. It was submitted that the applicant had been impacted by the COVID-19 pandemic and could not return to Indonesia in 2020. The applicant also referred to his limited English and his lack of awareness that he needed a further substantive visa. Mr Clezy said in a supporting letter that he was a registered nurse working in oncology, palliative care and infectious diseases for over 10 years. He said that he met the applicant in 2019 via social media and they became good friends. In April 2021 Mr Clezy was diagnosed with metastatic bowel cancer and underwent emergency surgery. He was given a prognosis of 2 to 3 years to live. He said that if the applicant returned to Indonesia he would be banned from re-entering for three years. Mr Clezy said that he was immunocompromised and could not travel. He requested that his health status be ‘compelling evidence’ as to why the applicant should be allowed to remain in Australia for a further 6 months. He said that it is the one chance he has to remain in Australia and travel with Mr Clezy before he died. Due to the Melbourne lockdowns, he had not had the chance to experience the ‘penguin parade’ or visit the 12 Apostles. Mr Clezy said that he would dearly love to experience those places with him. Mr Clezy went on to say that the applicant is a practising Muslim and that he had every intention to return to Indonesia for Ramadan in 2022. He said that he had complied with previous visas. He had stable accommodation in Australia. The applicant’s representative submitted that the Department should hold the application in abeyance and decide it within the average processing time, between 8 and 16 months as published on the Department website on the basis of Mr Clezy’s ‘heartfelt plea to permit Awandi to remain here until Ramadan in April 2022’. It was submitted that in the alternative the applicant had excellent prospects of a favourable decision from the Minister on the basis of unique and exceptional circumstances, due to the strong compassionate circumstances relating to Mr Clezy’s terminal cancer that if not recognised would result in serious, ongoing and irreversible harm to an Australian citizen, due to his inability to spend time with a close friend. It was also submitted that the application of the criteria would result in unfair and unreasonable results as he satisfied all other criteria. Further, he could not return to Indonesia due to circumstances outside his control, being prohibitive costs of flights and inability to work in Australia. 

13. A medical reported was provided to the Tribunal, for Mr Clezy dated April 2021 from St Vincent’s Hospital Colorectal Multidisciplinary Team Meeting. Diagnosis was stated as ‘transverse colon, adenocarcinoma NOS, moderately differentiated’.

14. The applicant in submissions to the Tribunal on 17 May 2022 stated that Mr Clezy had recently been admitted to palliative care and then discharged home, which had caused emotional stress for the applicant. As referred to earlier in this decision, Mr Clezy has now passed away.

15. The Tribunal has considered the applicant’s submissions but notes that it is conceded that he does not meet Criterion 3001 and further, that lack of knowledge about visa status, is not relevant to the question of whether he meets Criterion 3001. Clause 600.22 of Schedule 2 to the Migration Regulations, titled ‘Criteria for Tourist Stream’, states that ‘these criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 600 visa in the Tourist stream’. Clause 600.223 of Schedule 2 to the Migration Regulations is one of those criteria as it falls under the heading of Clause 600.22. Clause 600.223 (2) provides that if the applicant was in Australia at the time of application and did not hold a substantive visa the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. The use of the word ‘and’ indicates that the legislators intended that applicants who were in Australia at the time of application, and did not hold a substantive visa, satisfy all relevant Schedule 3 criteria, where applicable. Thus, if the applicant does not satisfy Schedule 3 Criterion 3001 he does not meet cl 600.223(2) of Schedule 2 to the Regulations.

16. 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) and includes the last day when the applicant held a substantive visa. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, for the applicant’s substantive visa ceased on 4 May 2020 and the application for a Visitor visa was made on 4 November 2021.

17. The Tribunal notes the compassionate circumstances of this case as the applicant’s friend has now passed away. The Tribunal has considerable sympathy for the applicant, who has complied with visa conditions in the past, except on the last occasion, when COVID-19 was rampant. However, the criteria in Clause 600.223 (2) are mandatory. In cases relating to time limits for applications for review the courts have held that the Tribunal has no discretion if an application is lodged outside a prescribed time. In SZRHA v MAIC,[1] while the Court accepted the applicant’s application was not lodged in time because of negligence on the part of her migration agent, it held the terms of the Migration Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgement of a review application. Similarly, in BET16 v MIBP[2] the Court considered the situation of an applicant in immigration detention whose review application was not lodged in time due to unsuccessful attempts by a Serco officer to fax the review application to the Tribunal. The applicant in that case stated that he was reliant upon Serco officers for administrative procedures, such as lodging the review application. The Court found that the applicant in that case was left in the same position as an applicant whose migration agent fails to lodge an application within the required time, and held that the application was out of time, and even if that is harsh and significant injustice arises, the statutory provision allows no interference.

    [1] [2013] FMCA (Cameron FM, 14 February 2013). Upheld on appeal: SZRHA v MIAC [2013] FCA 531 (Nicholas J, 16 May 2013).

    [2] [2016] FCCA 3165 (Judge Smith, 14 December 2016) at [20].

18. While the cases referred to above relate to different provisions, the wording in the relevant provisions are mandatory, ‘the applicant satisfies Schedule 3 criteria 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) and includes the last day when the applicant held a substantive visa.

19. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, the applicant does not meet the requirements of cl 600.223 of Schedule 2 to the Regulations.

    DECISION

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

    Jane Marquard
    Member