Australian Immigration Daily News

It is so incredibly important for a person who wishes to remain in Australia to lodge a valid application with the Department for a new substantive visa before their original visa expires. 

If a visa holder allows her/his visa to “expire” before applying for a new, or “further” visa, they may find themselves in a position where they and their family members have no choice but to leave Australia and then apply for the new visa from “offshore”.  Of course, the visa holder and her/his family may suffer from substantial inconvenience and upheaval if they have to go offshore to make another application.  Not to mention that they may have to “wait” offshore for an indeterminate period of time while the Department assesses the application. 

For these reasons, it is also essential that a person must take an active role in safeguarding her/his visa entitlements, and not passively hand the process of applying for a further substantive visa to “someone else”.  

The risks associated with allowing one’s visa to cease, and not actively participating in (or at least closely monitoring) the progress of the preparation and lodgment of a new application were graphically illustrated by decision that was handed down by the Administrative Appeals Tribunal in mid-January,1500055 (Migration) (2016) AATA 3033 (14 January 2016).  

The background of this case was that the applicant was a Hindu priest who was a citizen of India. 

He held a “Subclass 428 (Religious Worker) visa” that was granted on 11 September 2012, and which ceased on 11 November 2014.  He served as a priest at the Sri Durga Devi Devasthana Hindu Temple in Regents Park in suburban Sydney, where he was involved in conducting a variety of religious ceremonies. In evidence that was given before the AAT, the president of the Temple described the applicant as a “highly revered and knowledgeable Hindu Priest who is a valued member of the organization and the wider community”. 

The problem that the applicant faced was that his application for a further substantive visa was not submitted to the Department until 6 November 2014, just a few days before his existing visa was due to cease on 11 November 2014.  This would not necessarily have been of any great consequence. However, the visa application fee (which was only $1,060) was not paid at the time that the application was lodged. 

Consequently, on 7 November 2014 (the day after the application was filed), the Department wrote to the applicant and requested that the correct application fee be paid by 14 November 2014.  And in fact, the visa application charge was paid within the time specified by the Department, on 13 November 2014. 

The difficulty for the applicant was that by the time that the visa application charge was paid, his previous substantive visa had ceased (on 11 November 2014). 

Therefore, the applicant was placed in a situation where he needed to meet the criteria of clause 3004 of Schedule 3 of the Migration Regulations. Specifically, as a person who had ceased to hold a substantive visa after 1 September 1994, he needed to be able to demonstrate that the reason he did not hold a substantive visa at the time that the valid application for the new visa was lodged was due to factors beyond his control. 

This is where the applicant ran into obstacles before the AAT.  

The Tribunal member found that the relevant standard for determining whether there have been factors beyond an applicant’s control had been stated in the case of Su & Ors v Minister for Immigration & Anor (2007) FMCA 318, which in turn had adopted the standard from the case of Secretary, Department of Social Security v Secara & Ors, (1998) 89 FCR 151: 

“The…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…..A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision”. 

In this case, the Tribunal applied the legal standard that was stated in the Su  case and concluded that the applicant’s failure to lodge a new valid application before his previous visa ceased was not due to factors beyond his control.  The Tribunal member reached this determination based on these considerations: 

1. The applicant could have spoken with his employer (to whom he had entrusted responsibility for lodging his new visa application) and made sure that the visa application had been lodged and the correct fee had been paid before his previous visa ceased; 

2. The applicant could have checked with the Department to confirm that the application that had been lodged on 6 November 2014 (before the previous substantive visa ceased) was a valid application and that the required visa application charge had been paid; 

3. The applicant could have obtained legal or migration advice concerning preserving his visa status. 

Since the Tribunal found that the applicant did not satisfy the criteria of clause 3004 of Schedule 3, it affirmed the Department’s decision to refuse the visa application. 

There is an aspect of this case that is certainly troubling:  When the Department wrote to the Department on 7 November 2014 to tell him that the visa application charge needed to be paid within 7 days (by 14 November 2014), it apparently did not confirm that his existing visa was due to expire in less than 7 days.  Therefore, it is possible that the Department’s correspondence could have caused the applicant to understand (incorrectly) that he had additional time (beyond 11 November) to maintain his lawful visa status and that he could do so by paying the visa application charge after 11 November 2014. 

What do you think about this? Do you think that it is possible that the Department might have unintentionally misled the applicant into thinking that if the visa application charge was paid by 14 November 2014 (albeit after his existing visa has expired) that “everything would be ok with the new visa application”?). Given that the Department had told the applicant that he could pay the visa application charge by 14 November 2014, should the Department have refused the application? 

Is this a case where the applicant’s failure to submit a new valid visa application (by making sure that the visa application charge was paid in a timely manner) was in fact due to circumstances beyond the applicant’s control -  namely, detrimentally relying on advice from the Department’s officers concerning when the visa application charge could be paid? 

Is this a harsh result, one where the visa applicant did exactly what he was told to do by the Department, but then had his visa application refused nonetheless? 

And is this a case where an application for Ministerial Intervention might be appropriate, especially in light of the applicant’s obvious importance as a religious leader in the Hindu community? 

Over to all of you for your thoughts!

 Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837