Tapuloloo (Migration)

[2022] AATA 2707

Tapuloloo (Migration) [2022] AATA 2707 (14 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Enite Muava Tapuloloo

CASE NUMBER:  2103636

HOME AFFAIRS REFERENCE:               BCC2020/2679270

MEMBER:Rosa Gagliardi

DATE:14 June 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application with the direction that the applicant meets PIC 3004 for the purposes of cl.600.223.

Statement made on 14 June 2022 at 2:24pm

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 – elderly age – lack of language skills – entirely reliant on daughter and granddaughter – compelling reasons for granting the visa – ongoing State of Emergency in Samoa – decision under review remitted

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 17 November 2020. 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.

3. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this case, they include cl.600.223, which requires that if the applicant was in Australia at the time of an application, and did not hold a substantive visa, the applicant satisfies Schedule 3 criteria 3001, 3002, 3003, 3004 and 3005.

4. Schedule 3 criterion 3004 requires that if the applicant ceased to hold a substantive visa on or after 1 September 1994, the Minister is satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control; and there are compelling reasons for granting the visa.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223 because she did not hold a substantive visa at the time of the visa application and the delegate was not satisfied that this was due to factors beyond their control.  Nor were there any compelling reasons identified for the grant of the visa.

6. The applicant appeared before the Tribunal on 31 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from her grand-daughter, Ms Muava Teuilaosamoa Temita.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether cl.600.223 is met.  As the applicant was in Australia and did not hold a substantive visa at the time application, cl.600.223 requires that she satisfies Schedule 3 criterion 3004 (the Schedule 3 criteria is cumulative and therefore if one fails, all fail). 
   
   

   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.

   Criterion 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.

8. The applicant applied for this visa on 17 November 2020 and she last held a substantive subclass 600 Visitor visa which ceased on 31 October 2020.  As such, it is not contested that at the time of lodging this application (subject of review), the applicant did not hold a substantive visa.

   Factors beyond the applicant’s control

9. The applicant is elderly, speaks little English and is entirely reliant on her daughter and granddaughter for the regularisation of her visa status.  The applicant’s granddaughter at hearing stated that at the time she had tried to lodge an application online, but maintenance works on the site had prevented her from doing so.  It was a weekend and she tried to ring an immigration official, however, as it was outside business hours, no one was able to assist her.  By the time the applicant’s granddaughter had put together all the necessary documentation the 28 days had expired. 

10. The Tribunal accepts that the applicant was unable to keep abreast of her visa status and relied on her granddaughter who was unaware that she was not able to lodge a further Visitor visa online.  It could be argued that had the applicant’s granddaughter lodged the application for this Visitor visa well before the expiry of the previous one, she would have been informed earlier by the Department that even if the site was working, an online application was invalid in the circumstance.

11. The Tribunal considers that there were factors beyond the applicant’s control for lodging the application outside the 28 days timeframe because it was her granddaughter who had control of her visa application.

    Compelling reasons for the grant of the visa

12. The Tribunal has referred to the dictionary for the ordinary meaning of compelling.  In the Merriam-Webster dictionary synonyms for the term compelling includes: convincing, forceful, strong and persuasive.[1]  In the Cambridge English dictionary, related words to compelling have been listed as, among other things: driving, life-altering, powerfully, forcibly, unshakeable, piercing.[2]  In other words, the reasons for the grant of the visa must be forceful, such that the Tribunal is compelled to find that there are powerful reasons for the grant of the visa.

    [1] Compelling Definition & Meaning - Merriam-Webster, accessed on 26 April 2022.

    [2] accessed on 26 April 2022.

13. The Tribunal has sighted country information that supports the applicant’s contention that she could not return to Samoa earlier as the borders only open to international travellers and all Samoans on 1 August 2022.[3]  Until that date, Samoa’s international borders will be closed under an ongoing State of Emergency.[4]  The Tribunal concedes that given the applicant is not in a position to leave Australia as at the time of writing due to the country’s ongoing State of Emergency, there are compelling reasons for the grant of the visa.  These matters are all outside the control of the applicant, but furthermore are also compelling.

    [3] Samoa Travel regulations, Coronavirus regulations, travel bans - Travelbans, accessed on 14 June 2022.

    [4] Ibid.

14. The Tribunal also places significant weight on the fact the applicant and her daughter have purchased tickets to depart Australia on 24 September 2022.  When asked why the applicant was not departing earlier given the borders open on 1 August 2022, the applicant stated that there was a queue for persons returning to Samoa and that was the earliest they were able to attain a flight. 

15. Importantly, the applicant has submitted evidence that the tickets have been paid for to the value of AUD$1,995.  This demonstrates the applicant’s bona fides in having a genuine intention to depart Australia within a reasonable period after the borders open on 1 August 2022, and that the applicant is not attempting to maintain an ongoing presence in Australia and has not been doing so.  The applicant’s daughter will accompany the applicant on her flight to her home country to provide assistance and support.

16. Having considered the applicant’s circumstances, individually and cumulatively, the Tribunal is satisfied that there were factors beyond the applicant’s control which led to her not having a substantive visa at the time of application; and there are compelling reasons for the grant of the visa.

    DECISION

17. The Tribunal remits the application with the direction that the applicant meets PIC 3004 for the purposes of cl.600.223.

    
    
    

    Rosa Gagliardi

    
    

    Member