Trivedi (Migration)

[2022] AATA 2636

Trivedi (Migration) [2022] AATA 2636 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Daksha Nareshkumar Trivedi

REPRESENTATIVE:  Ms Carina Ford

CASE NUMBER:  2016813

HOME AFFAIRS REFERENCE(S):          BCC2020/1657759

MEMBER:Louise Nicholls

DATE:7 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the 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 07 April 2022 at 10:59am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant did not hold a substantive visa at the time she applied for the visa – applicant and her husband were unable to return home due to international border closures both in Australia and India – factors beyond the applicant’s control – Covid-19 –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3

CASES
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is 68 years old and is a citizen of India. She last arrived in Australia on 10 May 2019 as the holder of a visitor which ceased on 10 May 2020.

2. The applicant applied for a Visitor (Class FA) Subclass 600 visa on 1 June 2020. On 18 November 2020 the delegate of the Minister for Home Affairs refused to grant the visa on the basis that the applicant did meet cl.600.223 of the Migration Regulations. Essentially the delegate found she did not meet the relevant Schedule 3 criterion because the applicant did not hold a substantive visa at the time she applied for the visa due to factors beyond her control.

3. This is an application for review of that decision.

4. The applicant and her husband appeared, in a combined hearing, before the Tribunal on 14 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

6. The applicant and her husband are citizens and residents of India. The applicant is 68 years old and is retired. He and his wife have two children; one married son, Mehul who is living in Melbourne, Australia with his wife and children, and a married daughter living in Mumbai.

7. The applicant and her husband have visited their son and his family in Melbourne on several occasions since 2006. They last arrived in Australia on 10 May 2019.

   CONSIDERATION

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.

11. 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

12. 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.

13. The evidence before the Tribunal indicates that the applicant’s last substantive visa ceased on 10 May 2020. The application for the visa was made on 1 June 2020.

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

    Criterion 3003

15. 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

16. 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.

17. 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.

18. 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.

19. The applicant has provided several documents to support her application for the visa including:

    ·            A photocopy of the biodata page of the applicant’s Indian passport.

    ·            A photocopy of the applicant’s BUPA medical insurance card.

    ·            A copy of the applicant’s Commonwealth Bank statement April to May 2020.

    ·            Undated statement provided to the Department.

    ·            Delegate’s decision record dated 18 November 2020.

    ·            Submissions made by the applicant’s representative dated 11 October 2021.

    ·            Statement made by the applicant’s son Mehul Trivedi dated 7 October 2021.

    ·            Letter from Tim McCorritson, Psychologist, dated 6 October 2021.

    ·            Letter from Dr De Silva, Psychiatrist, dated 10 October 2021.

    ·            List of medications prescribed for Mehul Trivedi.

    ·            Bank statement Mehul and Smruti Trivedi dated 11 October 2021.

    ·            Payslip for Smruti Trivedi.

    ·            Joint Statement made by the applicant and her husband dated 11 October 2021.

20. The Tribunal accepts that the applicant’s last substantive visa ceased on 10 May 2020 and her application for a further visitor visa was lodged on 1 June 2020.

    The reasons the applicant is not the holder of a substantive visa, and whether they are factors beyond the applicant’s control.

21. 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.

22. 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] that two useful points emerge from that case:

23. 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.

24. After considering the material provided by the applicant and the oral evidence, the Tribunal accepts that the reasons the applicant was not the holder of a substantive visa were factors beyond the applicant’s control.

25. The evidence indicates that the applicant has little English and that she is generally reliant on her son for assistance in relation to her applications for visas, compliance with visa conditions and contact with the Department.

26. The representative submitted that the applicant and her husband were due to return home to India on 9 May 2020 marking the 12-month period of their visitor visas. At that time, the COVID-19 pandemic was starting to have a devastating impact in their home country of India. The applicant and her husband were unable to return home due to international border closures both in Australia and India. Additionally, the threat to their health was high due to each having underlying health conditions. This uncertainty and fear for their health contributed to an already stressful environment. As detailed in their joint statement, the applicant and her husband have limited English and relied on their son, to ensure they were complying with their visa conditions.

27. The applicant stated that she and her husband were due to return to India and had booked tickets for a return flight to India on 9 May 2020. When the COVID-19 pandemic started and international borders closed, the applicant’s son applied for a waiver to the No Further Stay condition on the applicant’s visa. At the time, they attempted to contact Sri Lankan Airlines to postpone the flight but did not receive any response. There was a lot of uncertainty about when the borders would reopen.

28. The applicant stated 

    12. On 24 April 2020, we received the waiver, Mehul read over it. Mehul believed that this waiver covered the condition 8558 and that we had until the end of visa dates to apply for another visa (i.e. Daksha Trivedi’s visa expiry date was in August 2020 and Nareshkumar Trivedi’s visa expiry date was in February 2021). Mehul had handled the waiver application and his English language skills are far more superior than ours.

    13. On 14 May 2020, my husband and I tried to apply online for Visitor Visas with Mehul’s assistance, however, we couldn’t apply online. Mehul called the immigration office for help as he thought something was not correct. Mehul was told that we did not have any visas for last few days and hence were not allowed to apply for any visas online. On this Mehul panicked and called his friend who used to work as MARA agent and suggested to Mehul to apply for BVE immediately. We received a call from the Visa officer on 19 May 2020 who approved our BVE visas until 7 June 2020 and asked us to do the paper application for Visitors Visas as soon as possible as we still have 28 days grace if we fail to apply for any valid visa before existing visa expires. We applied for paper application visitors visas again with Mehul’s assistance (he completed the forms for us) and got the confirmation of receipt of visitor visa applications & bridging visa.

    14. Mehul assumed that the visa end date for me is August 2020 and for Nareshkumar is in February 2021, hence not understanding the clause 8558 i.e. 12 months max stay still applies even if the waiver is given for 8503 clause. Also, Mehul didn’t read the waiver document properly, which stated to apply for any valid visa before 10 May 2020. We trusted Mehul and believing that this was still within the allowable timeframe.

29. The applicant’s representative submitted that under ‘normal’ circumstances, this in and of itself, does not preclude the applicants from taking responsibility for their own affairs. However, the family were faced with a unique situation in the COVID-19 pandemic. This had a flow on effect of mental distress experienced by the applicants and their son compounded by their own physical health issues at the time and an ongoing concern for family at home in India.

30. The Tribunal is not obliged to follow the policy guidelines set out in the Department’s Procedures Advice Manual (PAM3) but it considers these guidelines give some guidance in matters where decision makers must apply some subjective judgment. 

31. The Department’s policy guidelines state that the purpose of the Schedule 3 criteria are to:

    “encourage non-citizens who have a legitimate basis for remaining in Australia to apply for a further visa before their current substantive visa ceases,

    discourage non-citizens from remaining in Australia beyond the period of effect of their substantive visa, and

    prevent non-citizens from benefiting by remaining in Australia unlawfully, by possibly acquiring visa eligibility while remaining here without lawful permission.” 

32. The guidelines also state that “It is recognised, however, that there are situations in which non-citizens remain in Australia without a substantive visa through circumstances over which they have no control and situations where there are compelling reasons for granting them a visa to remain.”

33. The guidelines note that criteria 3004 (c) to (h)

    “include subjective elements, which means that:  

    ·a decision on whether an applicant satisfies these criteria will not necessarily be clear cut or beyond dispute

    ·a decision maker will need to exercise judgment, assess all the circumstances of the applicant against the meaning and intention of the criteria, and form an opinion as to whether the criteria are satisfied.” 

34. Generally, the Tribunal would not consider that a mistake in understanding the conditions of an applicant’s visa is a matter beyond an applicant’s control. However, the evidence indicates that the error in applying out of time was not a mistake made through mere inadvertence.

35. The Tribunal accepts that the failure to apply while still a substantive visa holder, in this instance, was due to factors beyond the applicant’s control.

36. The COVID 19 pandemic in early 2020 caused airline cancellations, border closures, significant death and severe illness in India, confusion and psychological distress for the applicant and her family. These factors together with the applicant’s reliance on her son’s management of her visa applications and visa compliance resulted in the applicant not applying whilst a substantive visa holder. The Tribunal considers these matters were beyond the control of the applicant in that particular context. The Tribunal accepts the psychological and medical evidence which indicates the applicant’s son has been treated for some psychological conditions and these conditions may have contributed to his misreading and misunderstanding of the No Further Stay waiver. It also accepts that, while the officer of the Department was trying to be helpful in advising the applicant and her husband to apply within 28 days, this may have been misinterpreted by the applicant’s son as meaning that there was a 28-day grace period.

    Are there compelling reasons for granting the visa?

37. The Tribunal finds there are compelling reasons for granting the visa.  

38. The expression “compelling reasons” is not defined for these purposes. The ordinary meaning of “compelling” (to compel) may include ‘to urge irresistibly’ and to ‘bring about moral necessity’. To be ‘compelling’ the reasons in question must force or drive the decision-maker irresistibly to some end.[1] The word ‘compelling’ may include reasons which are forceful, involve moral necessity or are convincing, but does not of its own, necessarily require an involuntary element.[2]

    [1] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

    [2] Paduano v MIMIA (2005) 143 FCR 204 at [37].

39. The applicant has provided several documents setting out her health issues. She stated that she feared she ran a high risk of death or severe disease if she returned to India in May 2020 due to her underlying conditions. She also stated that there have been multiple deaths in her family in India with many close relatives dying in the first wave of COVID-19. The Tribunal accepts the evidence that COVID 19 was prevalent in India in 2020 and there were legitimate reasons for the applicant’s concerns about her health and the health of her husband if they had returned to India in May 2020. Further, vaccination was not available until 2021.

40. The applicant also gave evidence that she had a serious fall in November 2019 while travelling on public transport. The Tribunal accepts that the applicant was concerned for her health and physical and psychological recovery from the fall. It accepts that the applicant may not have fully recovered from the fall if she had returned to India in May 2020.

41. The Tribunal also accepts that the applicant’s son, who had existing psychological problems, was very stressed during this period and was fearful about what would happen to his parents if they returned to India.

42. The evidence indicates that the applicant and her husband had flights booked for 9 May 2020 and that when they enquired about their flights, they did not get any response from Sri Lankan Airlines. This is consistent with general country information on flight cancellations and border closures at that time.

43. The Tribunal also notes that the applicant and her husband have travelled to Australia several times and intend to continue doing so in the future. They have family in India and family in Australia and it is important for the applicant and his wife to be able to travel to visit family. If their visas are refused they may face difficulties when they next apply to visit their son and his family.

    Compliance with visa conditions.

44. The applicant has a history of visits to Australia and compliance with visa conditions and has always returned to India before the cessation of her visa.

45. There is no evidence before the Tribunal that the applicant has breached the conditions of her last substantive visa and any subsequent bridging visa. There is no evidence that the applicant will fail to comply with her visa conditions and her previous compliant migration history indicates she will comply with visa conditions.

    Would the applicant have been entitled to be granted a Visitor (Class FA) on the day the applicant last held a substantive visa?

46. The Tribunal has considered the requirements for a Visitor (Class FA) visa. It notes that the applicant’s son applied for a waiver of the 8503 condition on the applicant’s visa and that waiver was granted. The Tribunal accepts that the applicant’s son had misunderstood and misinterpreted the requirements set out in the waiver approval.

47. The Tribunal accepts that if the applicant and her son had interpreted the waiver approval correctly, they would have applied for a further visitor visa before the cessation of the substantive visa.

48. There is no information before the Tribunal which would indicate that the applicant would not have been entitled to the grant of a Visitor Visa on the day the applicant last held a substantive visa.

49. There is no evidence which would suggest that the applicant does not have a genuine intention to stay temporarily in Australia. The applicant and her husband have a compliant visa history, have provided evidence of substantial incentives to return to India and provided evidence of their financial resources. The applicant was granted a waiver of the No Further Stay condition and the circumstances suggest there would have been exceptional circumstances for the grant of the visa. The only reason that the applicant and her husband have not returned to India is due to the COVID conditions in India and their intention to have the refusal decision reviewed by the Tribunal so that they will not be disadvantaged in any future visa applications.

1. For the above reasons, the applicant satisfies criterion 3004.

   Criterion 3005

2. 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 evidence that a visa or entry permit has been granted to the applicant on this basis.

3. Accordingly, the applicant satisfies criterion 3005.

4. For these reasons, the applicant satisfies the Schedule 3 criteria for the purposes of cl. 600.223.

   Conclusion

5. 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

6. 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.

   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.