Uppala (Migration)

[2022] AATA 1993

Uppala (Migration) [2022] AATA 1993 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Kiran Uppala

CASE NUMBER:  2103352

HOME AFFAIRS REFERENCE(S):          BCC2020/2335528

MEMBER:Anne Grant

DATE:7 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 07 June 2022 at 9:51am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – impact of the COVID19 pandemic – flight restrictions – factors beyond the applicant’s control – compelling reasons – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 25 February 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 21 September 2020. The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because they were not satisfied that the applicant was not the holder of a substantive visa because of factors beyond his control.  Accordingly, the delegate found that the applicant did not satisfy cl 3004 of Schedule 3.  

3. The applicant appeared before the Tribunal by teleconference on 1 June 2022 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  The applicant did not require an interpreter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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).

6. The information before the Tribunal reflects that the applicant last held a subclass 500 student visa which ceased on 23 August 2020.   He was granted a bridging visa C on  21 September 2020.   The applicant did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.   He applied for the visa on 16 September 2022.  At that time, he did not hold a visa of any kind.

7. As the applicant did not hold a substantive visa at the time he applied for a visitor visa, 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

8. 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 and relevantly in this case is the last the last day when the applicant held a substantive.

9. The applicant last held a substantive visa which ceased on 23 August 2020.  He applied for the visitor visa on 16 September 2020.  This is within 28 days of the cessation of his visa. 

10. The applicant satisfies criterion 3001.

    Criterion 3003

11. 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

12. 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.  These are the circumstances of the applicant’s case.  He ceased to hold a substantive visa on or after 1 September 1994.

13. This criterion 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, and 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.

14. 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.

15. The applicant gave evidence that he thought his visa expired in October 2020 and as soon as he discovered that it had expired on 23 August 2020, he applied for a visitor visa.  At that time, he was not thinking straight due to the Covid19 situation.  Once he knew his visa had expired, he made enquiries about flights to India but there were no or very few flights and they were around $5000 one way.  His family were experiencing a bad situation in India, and many of them got COVID19.  They told him to delay coming back as long as he could.  He spoke to a lawyer who told him to apply for the visitor visa and wait until he could afford the flights home. He is not allowed to work on his bridging visa and stays with a family member who he described as a ‘cousin-brother’ here in Australia.  He has used his savings to support himself and his  cousin brother does not charge him rent.  He would like to stay and have a look around Australia and then he will return home, and asked that the Tribunal consider granting the visa for about 2 or three months so he could have a send off with friends and go for a visit to some places around Australia.  The applicant said he was unaware if his last visa was subject to a no further stay condition.  The applicant gave evidence that he has complied with all previous visas and would comply with the conditions of any visa in the event that he was successful in his review, even if he were required to depart Australia very quickly. 

16. The Tribunal asked the applicant if there were any other reasons why he was without a visa, or which prevented him from applying for the visa before his other visa had ceased.  He said there were not.  He  wrongly thought his visa expired after the date it did expire.  He was not unwell, and there were no other factors impacting on his capacity to apply for a visa prior to the cessation of his existing visa apart from his own mistaken belief.

    Consideration

17. Criterion 3004 first requires a decision maker to be satisfied that an applicant is not the holder of a substantive visa at the time he applied for a visitor visa because of factors beyond the applicant’s control, before considering whether there are compelling reasons for granting the visa and whether the applicant would otherwise have been qualified for the visa.   The applicant’s evidence, which is accepted, is that he mistakenly believed his visa ceased later than it actually did.  He did not provide any other factors which impacted or prevented him from lodging an application for a visitor visa earlier. 

18. As discussed with the applicant at hearing, there are no factors, such as illness or accident, or departmental error (or anything else) which were outside his control and which contributed to his not applying for the visa before his previous substantive visa ceased on 23 August 2020.  The pandemic was a reason why he did not wish to (or could not) return to India  at that time, but it did not provide any impediment to his capacity to apply for a visa.  The sole cause of the late application was his mistaken belief of his visa cessation date.  Whilst it may be understandable in circumstances of a global pandemic to become confused about such matters, checking on his visa and being aware of his visa conditions is well within the applicant’s personal control and is his sole responsibility.  

19. The Tribunal is not satisfied that the applicant was in Australia without a substantive visa at the time he applied for the visa due to circumstances beyond his control.   Consequently, the applicant does not satisfy criterion 3004 and the Tribunal will not consider the remaining sub criteria within the criterion.

20. The applicant does not satisfy 3004.  Because each of criteria 3001, 3003, 3004 and 3005 must be satisfied where the circumstances within apply to an individual, (they are not alternatives)  it is not necessary therefore to consider criterion 3005. 

    Conclusion on Schedule 3 criteria

21. The applicant does not satisfy criterion 3004 for the purposes of cl 600.223.

22. 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

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

    Anne Grant
    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.