Wellage (Migration)

[2021] AATA 4132

Wellage (Migration) [2021] AATA 4132 (21 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sachin Awishka Wellage

CASE NUMBER:  2016365

HOME AFFAIRS REFERENCE(S):          BCC2020/1331665

MEMBER:Louise Nicholls

DATE:21 October 2021

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 for a Subclass 600 Visitor (Class FA) visa:

·cl. 600.223 of Schedule 2 to the Regulations

Statement made at 4.16 pm 21 October 2021

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of visa application – suspension of flights into Sri Lanka – factors beyond the applicant’s control – compelling reasons – impact of the COVID19 pandemic – suspension of flights only temporary at first – stay for any other purpose – absence of helpful and publicly available direction – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 600.211, 600.223; Schedule 3 Criterion 30004

CASES

Paduano v MIMIA (2005) 143 FCR 204
Plaintiff M64/2015 v MIBP [2015] HCA 50
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318        

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Sri Lanka and is 25 years old. He arrived in Australia as the holder of a Subclass 408 (Temporary Activity) visa on 24 August 2019.

2. The applicant applied for a Visitor (Class FA) visa (the tourist visa) on 7 April 2020. He provided a copy of the biodata page of his Sri Lankan passport issued on 1 February 2019, a bank transaction statement and a short submission dated 3 April 2020.

3. On 28 October 2020 the delegate of the Minister for Home Affairs refused the application for a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act) on the basis the applicant did not meet cl.600.223 of the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not satisfy the Schedule 3 requirements set out in criterion 3004.

4. This is an application for review of that decision, and it was made on 7 November 2020. The applicant provided several documents, including:

   ·            Copy of the delegate’s decision record dated 28 October 2020.

   ·            Submissions made by the applicant’s representative on 11 September 2021.

   ·            Copy of travel itinerary, travel agents’ letter and Sri Lankan Civil Aviation notices in March/April 2020.

   ·            Media reports and government press releases on Australian travel restrictions.

   ·            Copy of applicant’s Subclass 408 visa application and visa grant notice.

   ·            Copy of Departmental policy on further visit visa applications during the pandemic.

   ·            Copies of the applicant’s cricket playing contract and related documents.

   ·            Letter of support from the applicant’s cousin living in Melbourne.

5. The applicant was represented in relation to the review.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   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. 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, they include cl 600.223.

10. Cl.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.

11. Criterion 3004 provides

    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. 

12. The issue in the present case is whether the applicant meets the requirements of 3004.

    Background

13. The applicant is a Sri Lankan citizen and he arrived in Australia on 24 August 2019. He had agreed to play cricket for a Victorian cricket team for a period of about 8 months and had obtained a Subclass 408 Sports Activity visa. He provided several documents to support this evidence. The term of the contract was specified as a period from 1 September 2019 to 30 April 2020.

14. The contract included terms that the cricket club agreed to pay the applicant an agreed fee, accommodation, health insurance and the cost of return airfares to Sri Lanka. The applicant was contracted to; play for the club’s first XI team; attend all training sessions, club meetings and special events; attend squad training and work individually with senior and junior players; recruiting new members and attending club presentations and fundraising events. The applicant was expected to spend a minimum of 30 hours per week at the club playing, training and mentoring. He was also contracted to attend club and sponsor functions if requested.

15. Other documents indicated that the applicant played regularly and had a high batting average and otherwise satisfied the conditions of his playing contract.

16. The applicant had a return airticket to Sri Lanka booked for 24 March 2020 which was also the date his visa was due to cease. The booking was postponed and then cancelled due to the Sri Lankan government’s action in suspending all flights into the country.

17. Following the flight cancellation in 2020, the applicant has been supported by his cousin who lives in Melbourne.

    Does the applicant meet the requirements of cl.600.223?

18. The evidence indicates and the applicant agreed that he was in Australia at the time of the application for the visitor visa on 7 April 2020 and his previous Subclass 408 visa had ceased on 24 March 2020.

19. Accordingly, the Tribunal finds the applicant did not have a substantive visa at the time of his application and the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations) visa in the Domestic Worker stream.

20. The applicant must meet the requirements of criterion 3001 and 3004. Criterion 3003 and 3005 are not relevant to this review.

    Does the applicant meet criterion 3001?

21. 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 cl.3001(2), that is, 28 days from the date that the applicant last held a substantive visa.

22. The evidence before the Tribunal is that the application was lodged on 7 April 2020 and the last day the applicant held a substantive visa was 24 March 2020. Therefore, his application was lodged within 28 days of the relevant day and he meets criterion 3001. He must also meet 3004.

    Does the applicant meet 3004?

23. The issue is whether the applicant satisfies criterion 3004 which is set out in full earlier in this decision. There are a number of distinct requirements.

24. Criterion 3004 of Schedule 3 to the Regulations requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his 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 substantive visas and any subsequent bridging visa held by the applicant.

25. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied 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 the last visa or entry permit held (if any) 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.

    Evidence before the Tribunal

26. The applicant provided a short statement with his application for a tourist visit in which he stated that he arrived in Melbourne in July 2019 on a temporary sports activity visa and was scheduled to depart on 24 March 2020. His travel agent advised him that flights had been suspended from 18 March 2020 for two weeks. The flight restrictions were subsequently extended for a longer period.

27. As a result, he applied for a tourist visa to enable him to remain lawfully in Australia until the Sri Lanka government allowed flights to resume.

28. In September 2021 the applicant appointed a new representative who provided comprehensive submissions with supporting material.

29. The applicant’s representative provided copies of the applicant’s flight itinerary dated March 2020, a letter from his travel agent and copies of notices from the Sri Lankan Civil Aviation Authority issued on 17 March, 23 March, 28 March and 4 April 2020. Those notices advised that Sri Lankan airports would be closed to all in bound passenger flights. The restriction was originally introduced on Wednesday, March 18, and was due to expire on 25 March, however it was extended for two-week periods until it was extended indefinitely in April 2020. The applicant’s representative provided a number of media reports which confirmed these restrictions.

30. The applicant provided a copy of his cricket playing contract and other related club notices. His contract stipulated the term of the contract from 1 September 2019 to 30 April 2020.

31. He also provided a copy of his application for a Subclass 408 visa in which he sought a visa period of eight months to enable him to compete his contractual obligations and a copy of the visa grant with a visa period of seven months rather than the eight months sought.

32. The applicant also provided several press releases and articles referring to the Australian Prime Minister’s advice to temporary visa holders in March/April 2020 which was, in effect, to leave Australia and return to their home countries as soon as possible.

33. The applicant’s representative’s submissions are lengthy, and the Tribunal will consider the issues raised in those submissions in assessing each of the requirements of criterion 3004.

    Was the applicant not the holder of a substantive visa because of factors beyond his control when he applied for a visitor visa?

34. The applicant came to Australia on 24 August 2019 as the holder of a temporary sports activity visa (Subclass 408). His visa was due to cease on 24 March 2020.

35. The Tribunal accepts that the applicant was contracted to a Victorian cricket club to play cricket, to mentor and train other members of the club and to attend functions and presentations. The term of the playing contract was to 30 April 2020 and despite seeking a visa period to cover the contractual period his Subclass 408 visa was for a period of seven months. His visa ceased on 24 March 2020.

36. The Tribunal accepts that the applicant intended to complete the terms of his contract but also wanted to comply with his visa conditions, so he booked a flight to Sri Lanka for the last day of his visa period, that is 24 March 2020. The applicant provided a letter from his travel agent as well as his flight itinerary with a booking reference and the details of the booked flight.

37. The evidence indicates that as a result of the COVID 19 pandemic, the applicant’s booked flight was initially postponed and then cancelled as a result of the Sri Lankan Civil Aviation Authority’s closure of international airports.

38. The evidence indicates that the Sri Lankan Aviation Authority closed its international terminals to all incoming flights from 17 March 2020, but the Tribunal notes its initial advice was that the closure would only last until 25 March 2020. The closures were extended and then on 4 April 2020 it made a decision to close air terminals and suspend flights indefinitely. Incoming flights did not resume until December 2020. The Tribunal accepts that up until the time he was advised of postponed flights the applicant intended to return to Sri Lanka within the terms of his visa conditions.

39. The applicant’s representative submitted that the surge of the COVID pandemic was abrupt, unanticipated and disruptive to the plans of visa holders around the world. Australia closed its borders on 20 March 2020 and Sri Lanka’s travel restrictions escalated roughly around the same period.

40. The applicant submitted that he was initially scheduled for a commercial flight to leave Sri Lanka on 24 March 2020 and in view of the announcements made by the Sri Lankan government, which were brought to his attention by his travel agent, the suspension of flights was only temporary and he believed that his flight would only be delayed for a short period. Subsequently it was brought to his attention that the flight suspensions would be extended for additional periods.

41. By 4 April 2020 there was a clear indication that suspension of incoming passenger flights to Sri Lanka would be indefinite. By this time the applicant did not have a visa and his only option was to apply for a visa that would allow him to extend his stay in Australia lawfully.

42. The applicant’s representative notes that in March/April 2020 when the impact of the COVID restrictions were first introduced, there was little Departmental instruction or guidance for visa holders in the same position as the applicant. At that time there was no specific visa which allowed visa holders to remain in Australia for the purpose of managing the COVID crisis. The Subclass 408 Australian Government Endorsed Stream had not been introduced at the time the applicant’s visa ceased on 24 March 2020.

43. Further there was no indication that the tourist visa was a viable option in the circumstances. The representative notes that the Form 1419 specifically stated that the form was to be used by persons who wished to remain in Australia for tourism or other recreational activities or to visit relatives or friends. However, the submissions noted that cl 600.221 of the Regulations was much wider in that it provided that the requirement was that

    The applicant intends to visit Australia, or remain in Australia:

    (a)  to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or

    (b)  for any other purpose that is not related to business or medical treatment. 

44. He submits the words “for any other purpose” are broad enough to cover a period of stay for the purpose of waiting for flights out of Australia. However, it is reasonable to expect, particularly in light of the instructions on the Form 1419, that the applicant would not consider that a tourist visa was the appropriate visa for that purpose at the time immediately before his visa ceased. The only other visa which he could have applied for was a Bridging Visa on departure grounds but if his departure had been delayed beyond 28 days he may have been subject to a three year exclusion period if he wished to return[1]. The representative submits without some Departmental guidance it is understandable the applicant was confused about his options.

    [1] Criterion 4014 of Schedule 4 to the Regulations.

45. In particular, the representative submits

    The eligibility for a suitable visa to allow visa-holders to regularise their status in Australia while being prevented from travelling overseas due to circumstances outside of their control was evidently unclear and poorly communicated by official sources. The eligibility for the applicant to apply for a visitor visa to remain in Australia was therefore understandably quite uncertain and tenuous as at that time. There was very limited official guidance as to what visaholders with visas expiring could do in the early days of the pandemic. Furthermore, it is important to recognize that the applicant had the misfortune of having his visa expiry set at a time when there was both abrupt and unprecedented drastic actions taken by his home government of Sri Lanka to prevent all incoming passenger flights thereby disrupting his planned departure, as well as a significant absence of helpful and publicly available direction from Australia for how his visa status should be regulated.

    ….

    Given the uncertainty with his eligibility prospects for a Visitor Visa application as at 24 March 2020, along with the lack of publicly available guidance and official confirmation of the visitor visa being a suitable option to extend a visa beyond a visa expiry period, it would be logical for the applicant to have apprehension and opt not to apply for a visa that he might not have been eligible for. It was only upon confirmation that Sri Lanka was in fact taking the drastic step on 4 April 2020 that all international passenger flights would be suspended indefinitely, that the applicant considered that he would expect to have to remain in Australia indefinitely. At that point in time, he sought legal assistance to submit for him a visa application, which at the time his thenrepresentative could only viably establish as a paper-based FA600 Visitor Visa application in the Tourism stream. The application was made and posted to the Department of Home Affairs practically immediately after the applicant’s instructions that he needed to apply for a visa to remain lawful in Australia and his notification about the indefinite suspension of his ability to return to Sri Lanka, with the Department acknowledging the valid application being received and made on 7 April 2020.

1. The applicant’s representative submits that in the applicant’s circumstances it was reasonable for him to wait for flights to Sri Lanka to resume which could have occurred as early as 25 March 2020 according to Sri Lankan government advice at the time. Further the advice of the Australian Government was for temporary visa holders to return home as soon as possible and not to seek to extend their stay.

2. The applicant submits that he was caught in an extraordinary set of circumstances at the time his visa ceased and that his response was a realistic and practical response to the abrupt and disruptive extenuating circumstances he found himself in.

3. 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 Sch. 3 criterion 3004. While the application in that case was dismissed by the Court, the judgement provides guidance on the interpretation of the test of factors beyond the control of a person.

4. 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:

5. 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.

6. The Tribunal has considered the evidence the applicant has provided and finds that due to the confluence of events described above, when he applied for the tourist visa, the applicant was not the holder of a substantive visa due to factors beyond his control.

7. It may have been theoretically possible for the applicant to have applied for a tourist visa prior to the cessation of his Subclass 408 visa. However, the Tribunal considers that in a practical or realistic sense he could not have done anything to prevent the events which occurred and prevented him from applying for a tourist visa while the holder of a substantive visa.

8. The Tribunal notes that the Sri Lankan advice of flight suspensions was only provided shortly before his visa was due to cease and initially the advice was that the suspension was only for a two-week period to 25 March 2020. Further he initially believed that the tourist visa was only available to applicants for the purpose of tourism or visiting relatives and there was no other useful advice to persons in his situation. He also was aware that the Prime Minister had advised temporary visa holders to return home as soon as possible and not to apply to extend their visas. These matters together prevented the applicant from applying for a tourist visa while he was still the holder of a substantive visa.

9. For reasons set out above, the Tribunal finds that the applicant meets the requirements of 3004(c).

   Other requirements of 3004

10. As the Tribunal finds that the applicant meets the requirements of criterion 3004(c) it is necessary to consider whether the applicant meets the other requirements set out in that clause.  

    Compelling reasons

11. Criterion 3004(d) requires that there be compelling reasons for granting the visa. 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.[2] 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.[3]

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

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

12. The matters put forward which would constitute compelling reasons are that if he departed as the holder of a Bridging Visa C the applicant would be subject to a three-year restriction from returning to Australia on a broad range of visas and his migration record would have a permanent adverse stain. He also notes the risk of the applicant contracting COVID 19 on his return to Sri Lanka on the basis of current country information that there has been a recent uncontrolled outbreak in Sri Lanka with 10,000 deaths as of 21 September 2021. The applicant supports this claim with a number of media articles[4].

    [4] ABC News article, ‘Why Delta COVID-19 variant could put younger people at risk of deadly cardiac complications’ b. Asia & Pacific article, ‘’Sri Lanka faces 4 mutations of Delta variant as COVID19 spreads c. Channel News Asia article, ‘Sri Lanka extends curfew as COVID-19 toll hits new record’ d. Reuters article, ‘Amid COVID surge, some Sri Lankans opt for cardboard coffins’ e. Sri Lanka Ministry of Health Epidemiology Unit COVID Situation Report as at 10 September 2021

13. The Tribunal considers that these are reasons which are compelling reasons for granting the visa.

14. The Tribunal finds that the applicant meets the requirement of 3004(d).

    Compliance with conditions and intention to comply.

15. The Tribunal considers that there is no evidence that the applicant has failed to comply with the conditions of his last substantive visa and any subsequent bridging visa.

16. It also considers that the applicant intends to comply with conditions to which the visa is subject. The evidence indicates that the applicant is being supported by his cousin and his family, he has provided evidence that he has sufficient financial resources and there is no suggestion that he wishes to work or study in Australia while the holder of a tourist visa.

17. The Tribunal finds that the applicant meets the requirement of 3004(e) and (g).

    Would the applicant have been entitled to be granted the class of visa applied for if the applicant had applied for the visa on the day when the applicant last held a substantive visa?

18. As pointed out by the applicant’s representative, on the broader view of visa purpose (cl.600.221(b)) the applicant would probably have been eligible for the grant of a tourist visa if he had applied on the day when he last held a substantive visa, despite himself not believing that to be the case. The Tribunal considers the applicant had an intention to visit temporarily for the purpose of awaiting a safe time to return to Sri Lanka. The evidence indicates and the Tribunal accepts that he had the support of his cousin for accommodation and his living expenses for his temporary stay.

19. The Tribunal finds that the applicant meets the requirements of 3004 (f).

    Conclusion

20. Having considered all the matters set out above the Tribunal finds that the applicant satisfies the requirements of criterion 3001 and 3004. Criteria 3003 and 3005 do not apply to the applicant.

21. Accordingly, the Tribunal finds that the applicant meets the requirements of cl.600.223.

    DECISION

22. 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.

    Louise Nicholls
    Senior Member