Wati (Migration)

[2022] AATA 2729

Wati (Migration) [2022] AATA 2729 (25 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sumintra Wati

CASE NUMBER:  2102788

HOME AFFAIRS REFERENCE(S):          BCC2020/2669282

MEMBER:Jennifer Cripps Watts

DATE:25 June 2022

PLACE OF DECISION:  Sydney

DECISION: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

Statement made on 25 June 2022 at 2:36pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – applicant did not hold a substantive visa at the time she applied for the visa –factors beyond her control – applicant was not able to renew her passport before it expired – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.223, 600.233

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 26 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 applicant applied for the visa on 16 November 2020. The delegate refused to grant the visa on the basis that the applicant did not meet cl.600.223 of Schedule 2 to the Regulations.  When the visa application was made, the applicant did not hold a substantive visa and did not satisfy Schedule 3 criteria 3004.

3. The applicant appeared before the Tribunal on 13 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter and authorised recipient, Kaylishni Devi.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. To meet the requirements of cl.600.223, if the applicant was in Australia at the time of application, it is required that:

   ·they hold a substantive temporary visa

   ·the substantive visa is not a subclass 403 visa

   ·the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005

6. In this case, it is not in dispute that the applicant did not hold a substantive temporary visa at the time of application.

7. The Tribunal has had regard to documentary evidence on the Department and Tribunal files, oral evidence given at the hearing and Departmental policy relating to Schedule 3 relevant and material to the issues on review.

   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’, as it is defined in 3001(2).  Relevantly in this case, the relevant day is the last day the applicant held a substantive visa (3001(2)(c)(i) and (iii)). 

9. The applicant applied for the visa that is the subject of this review on 16 November 2020.  Her last substantive temporary visa, a FA-600 visa, ceased on 12 November 2020.  The visa application was lodged within 28 days of the last day the applicant held a substantive visa.

10. The applicant meets criterion 3001.

    Criterion 3003

11. Criterion 3003 applies to 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 31 August 1994.

12. Criterion 3003 is not applicable in this case.

    Criterion 3004

13. 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 Australian unlawfully on or after 1 September 1994, and has not subsequently been granted a substantive visa.

14. Relevantly in this case, the Tribunal has considered the following matters as they are set out in criterion 3004:

    ·that the applicant is not the holder of a substantive because of factors beyond their control; and

    ·there are compelling reasons for granting the visa, and

    ·the applicant has complied substantially with the conditions of their previous entry permits, and substantive or bridging visas; and

    ·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; and

    ·the applicant intends to comply with any conditions subject to which the visa is granted

15. The applicant applied for the visa to extend her stay Australia during the COVID-19 pandemic, because the resulting international travel restrictions and health requirements made departing difficult.

16. The applicant’s Fijian passport that she had travelled to Australia on expired on 3 November 2020.  The applicant’s previous and most recent visitor visa was granted on 12 September 2020.  The applicant and her daughter planned to renew the applicant’s passport in Sydney, before the visitor visa ceased.  At the Tribunal hearing, the applicant explained why there was a delay in her renewing her passport in 2020.  Documentary evidence was provided substantiating the oral evidence of the applicant and her daughter. 

17. The applicant was staying in Melbourne with her daughter and the passport application needed to be made in Sydney, in person, because it had expired.  The biometrics are done in Sydney.  The earliest appointment they could get was on 18 December 2020; there was a cyclone in Fiji, passport applications weren’t being processed and the appointment was cancelled.  A subsequent appointment on 7 January 2021 was also cancelled.  The next appointment they were able to get was on 11 March 2021.  The applicant travelled from Melbourne to Sydney to lodge the passport application; the passport was issued on 23 March 2021 and expires on 22 March 2022.

18. The Tribunal has carefully considered the documentary and oral evidence provided and is satisfied that the applicant, due to factors beyond her control, was not able to renew her passport before it expired.  This prevented her from being in a position to lodge the subclass 600 visa application, that is the subject of this review, while she held a substantive visa.  The passport expired on 3 November 2020 and the last substantive visa the applicant held ceased on 12 November 2020. 

19. There is no evidence before the Tribunal to indicate that the applicant has not complied substantially with her previous visa conditions, on many trips to Australia over a number of years since 2014, on average at least once a year.  Her trips have been to visit family and to look after her grandchildren.  Given her positive visa history, the Tribunal is satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.

20. The Tribunal is not aware of any reason the applicant would not 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 she last held a substantive visa.

21. The applicant satisfies criterion 3004.

    Criterion 3005

22. 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 67 to the Migration (1993) Regulations, or regs 35AA, 42(1A) or 42(1C) of the Migration (1989) Regulations.

23. There is no information before the Tribunal to indicate the applicant has been granted a visa or entry permit as described above.

24. Therefore, the applicant satisfies criterion 3005.

25. For these reasons, the applicant satisfies the Schedule 3 criteria for the purpose of cl.600.233 of Schedule 2 to the Regulations.

    decision

26. 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:

    ·     Clause 600.223 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    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)if 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.