2103000 (Migration)

2103000 (Migration) [2022] AATA 3111 (7 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Tony Su Xiong (MARN: 0531691)
CASE NUMBER: 2103000

MEMBER:Melissa McAdam
DATE:7 July 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 07 July 2022 at 12:20pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made within 28 days after last substantive visa ceased – factors beyond applicant’s control and compelling reasons for granting visa – previously held student guardian visa to accompany daughter – could not apply until daughter applied for hers – COVID-19 restrictions and delay in issuing of daughter’s new passport – daughter’s age, personal circumstances, physical and mental health and progress at school – daughter’s visa now granted – extensive and credible evidence – disciplinary action against former agent – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criteria 3003, 3004
CASES
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v Minister for Immigration [2007] FMCA 318

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 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).
The applicant applied for the visa on 18 January 2021. 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.
On 9 February 2021 the department Delegate wrote to the applicant requesting more information as to why she applied for the visa while not holding a substantive visa. The delegate wrote the following:
Departmental records indicate that your last substantive visa ceased on 31/12/2020. You were an unlawful non-citizen and did not hold a substantive visa at time of your visa lodgement.
Migration Regulation 600.223 states:
(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.
To satisfy criteria 3003 and 3004, you must demonstrate that there were factors beyond your
control which prevented you from lodging an application whilst holding a substantive visa and that there are compelling reasons for granting the visa
On 15 February 2021 the applicant provided a written statement in response and included the following:
… I am writing this letter to demonstrate that there were factors beyond my control that prevented me from lodging an application whilst holding a substantive visa and that there are compelling reasons for granting the visa.
I came to Australia via a 590 guardian visa to take care of my daughter, who is studying at [School]. I planned to go back to my home country recently. However, due to the unexpected COVID-19 disaster that happened worldwide, I was overwhelmed by the horrible news about the virus. Every day, when I turned on the TV, there is plenty of terrific news about the progress of COVID-19 circumstance. I was really worried that this horrible virus would infect my daughter and me. Since only my daughter and I live in this foreign country when the fearful virus happened around us. I often hear that people in my age have been infected and whose health circumstance were really bad and had to go to the ICU and some of them whose resistance were low died of this horrible COVID-19 virus. And this virus is highly contagious. I heard that the one who got infected because she happened to open the door to take out the rubbish in the front door and has accidentally met the person who was confirmed to have the COVID -19 virus to pass by the door. This piece of news really made me very worried about the health circumstance of my daughter and me.
I felt very vulnerable and stressed, but I could not let my daughter know my worry, making her more stressed and fearful. She is my little child who needs to be protected. I do not want her to suffer from this horrible circumstance. I have to pretend that everything is ok and nothing to worry about as long as she gets her mother here. And I often cry to my husband about our situation, and he also worries about us and gives me strong mental supportiveness to help me be strong enough to take care of our daughter.
And our daughter needs to study in Australia, and she really enjoys her studying life with her friends at school. I do not want her to worry about us and could not have a happy school life.
So, I felt very stressed and frustrated but could let my daughter know about my real feeling. And every day, I lived with the stress and fear, which made me not realise that our visa has been expired, until my husband talked with me regarding when we would go back to our home country – China. When I finally realised the huge mistake that I made, I was buried by remorse and panic. I really regretted my carelessness. And I searched online and consulted with my friends. I found I needed to depart from Australia as soon as possible since my guardian visa has already expired.
Nevertheless, the COVID-19 circumstance is still not stable. There is constant news about newly confirmed patients found everywhere. I read the news that the government required the people to stay at home, and there should be a 1.5-meter social safe distance to avoid being infected. The disease has killed thousands of people and infected numerous innocent people. I have heard that people of my age are particularly susceptible to infection and have a high risk of dying, and experts have confirmed that some people with no symptoms could affect others.
Moreover, governments around the world have published the travel ban, including China and Australia, to protect more innocent people from suffering from the disaster. Due to the travel ban, I could not purchase a valid flight ticket to travel back to China recently. And the situation is still very serious. After a long-term flight, I really worry about my health since an airplane cabin is a confined space, and even a direct flight between Australia and China should be over nine hours, which is a high risk of infection.
I have my lovely daughter and husband. I do want to stay healthy to take care of my family after I return to China.
And the COVID-19 circumstance is beyond my control. So, I figured that I need to wait and could not depart from Australia until it is safe for me to get a valid flight ticket to travel back to China. Hence, I decided to write to you to apply for your kind approval to my visitor visa to stay lawfully until I can purchase a valid ticket to travel back to China. I hope you can understand my situation and approve my application for the visitor visa.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because she did not meet Schedule 3 criteria 3004 of regulation 600.223(2).
Information to the Tribunal
On 10 March 2022 the applicant provided the following written materials to the Tribunal:
-A Chinese Notarial certificate recording the applicant’s kinship details.
-The applicant’s Chinese passport.
-A letter of grant of a subclass 590 Student Guardian visa to the applicant in January 2019.
-A Confirmation of Enrolment at an Australian secondary school for the applicant’s daughter.
-A typed letter from the applicant.
In the applicant’s typed letter she states the following:
… I was holding a Student Guardian visa to accompany my daughter who was studying at secondary school in Australia. However, due to my carelessness, both of my guardian student visa and my daughter’s student visa expired. When I notice that my status in Australia has been unlawful, I submitted a paper application for a visitor visa(subclass 600), however, my visa application was refused on 18 Feb 2021.
The facts related to my visa application
On 01 Jan 2021, I lodged a valid visa application in Australia to for I suddenly notice that my student guardian visa had expired and my visa status in Australia had been unlawful.
On 18 Feb 2021, I was notified that my visa application was refused but I am entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision within 21 calendar days.
The case officer refused my visa application on the grounds that clause 600.223 in Schedule 2 of the Migration Regulations in which my situation is not satisfied him/her. On 9 February 2021, a letter was sent via email to me requesting they address in writing the reasons we did not hold a substantive visa at time of lodgement, whether there were factors outside control preventing me from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa.
On 15 February 2021, I provided a submission letter to explain the circumstances which led to us to lodge the Onshore Visitor visa application after our last substantive visa had expired.
The case officer considered my case and made the decision to refuse my 600 visa application
for he/she was not satisfied that I meet the relevant criteria in clause 600.223 in Schedule 2 of the Migration Regulations.
Since my intention to apply for a substantial visa is for purpose of making up my unlawful visa status to arrange to depart Australia. I decided to wield my right to apply to you for a merits review of the department of home affair’s decision on my visitor visa application.
My appeals
In this part, I would like to list the case officer’s reasons for refusing my visa application and make the arguments with my grounds.
1. Based on the applicant’s claims and information provided, I am not satisfied there were factors beyond the applicant’s control which prevented them from lodging the current FA600 Visitor-Tourist Stream application while holding a substantive visa or that there are compelling reasons for the grant of the visa. Therefore, I am not satisfied the client satisfies Schedule 3 criterion 3004.
Firstly, I must say that 2020 is a very special and difficult year for every person in the world. From the spread of the epidemic, everyone was drawn in danger and horror, to the sudden lockdown and the border closure, none of us have experienced it. As a guardian mother who came to Australia alone to accompany my daughter to study, I also fell into fear and helplessness. I have to worry about my daughter’s health condition as well as her academic progress.
I am worried that the epidemic is serious and we will not be able to return to China. Every day I
discuss with my husband whether to end my daughter’s study in Australia and return to China,
because in our opinion, all the plans are disrupted. At this time, the most important thing for our
family is being together and we must make sure everyone is safe and healthy which is the priority we considered. Excessive worry and anxiety caused me to ignore the expiration date of my daughter’s and my visa. It was not until my husband mentioned it that I realized that our visa had expired for a long time.
I know that as a guardian, I have a responsibility to ensure that my daughter and my visa are valid, but please also understand my anxiety and situation at the special time. Now that the epidemic is under control, my daughter wants to continue to study in Australia, and I will visit her in Australia again in the future. I don't want to leave a history of being denied a visa. At the same time, I also believe that the arrival of the epidemic and the fear that it brings to people are irresistible facts, and I am also affected because we felt helpless in this unfamiliar country and my English is not good, so if something happens, I really don’t know how to deal with it. As a result I have an unimaginable anxiety that leads to the mistake of visa expiration. As the only guardian of my daughter in Australasia, she need my accompany best at this time and she likes her school and teacher and all her friends her, so she do not want to leave them and be taken back to China now. If she ceased study now, she has to readjust to the new learning environment in China.
I believe the case officer should consider my case for the best interest of the children.
Considering above reason, I have compassionate and compelling grounds to be granted a visa to provide me more time in Australia to arrange my daughter’s study and life. Therefore, I satisfied Schedule 3 criterion 3004.
2. Schedule 3 — Additional Criteria applicable to unlawful non-citizens and certain bridging visa
holder of the Migration Regulations state:
After considering the information provided, I find that the applicant holds or held a Temporary
Work (International Relations)) visa (subclass 403) in the Domestic Worker (Diplomatic or
Consular) stream.
Actually, I have never applied for or been granted a 403 visa, I have no idea why the case officer made a judgement that I hold a 403 visa. And in the S56 letter sent by the immigration, the case officer didn’t invite me to explain if I hold this 403 visa. I considered the case officer did not make a correct decision after fully understanding my situation.
My expectation
Since I’m sure that I’m staying in Australia only for genuine temporary entrant purpose, I really hope you could re-access the decision made by the department of home affairs. I will made fully arrangement for my daughter before I depart Australia.
Tribunal Hearing
The applicant appeared before the Tribunal on 6 May 2022 to give evidence and present arguments. At the start of the hearing the applicant submitted a lengthy new written statement which appeared to contain different elements from the previous information submitted. The Tribunal therefore informed the applicant it would take some preliminary information from her and then adjourn the hearing to a further date so the Tribunal could properly read and absorb the applicant’s new written statement. The applicant understood this and also provided the following oral evidence:
a.It was her former agent who applied to the Tribunal on her behalf and they did not include accurate information of her past situation. The Tribunal put to the applicant that there was no record or indication she had been assisted by a Migration Agent. She responded she didn’t know about this. The email address on the application form is theirs not hers. She had provided her materials to the agent to lodge the application. They contact each other through We Chat. A friend initiated contact with the agent for the applicant. The applicant named the agent’s firm. The applicant used them because she did not know anyone else here and her friend told her she could use them. She started using the agent in 2020 when she applied for the visa. Before this she used agents in China to obtain the student visas.
b.She told the agent what had happened and the agent wrote a statement for her. The agent submitted this, the applicant’s passport and her daughter’s CoE to the Tribunal. She paid the agent $3000. The agent has a ‘qq’ email address.
c.The applicant’s daughter’s was granted a student visa on 22 June 2021 which will expire on 15 March 2026. Her passport expired on [Date 1] December 2020. According to the applicant’s previous experience when a passport is due to expire in 6 months you can’t apply for a visa. Even though the applicant held a valid visa she was worried that when she applied for daughter’s new visa her daughter’s passport was due to expire.
d.The Tribunal then adjourned the hearing to a later date.
In her written statement submitted on 6 May 2022 the applicant outlines the following:
On 6 December 2017, I, my husband [Mr A], and our daughter [Ms B] …, were granted for a sc600 visitor visa for travelling to Australia in January 2018. The trip left our family with wonderful memories and our daughter loved the country, especially Melbourne. So, after family discussion, my husband and I decided to send our daughter, who was only [Age 1] at the time, to study in Australia, accompanied by me as her guardian.
My daughter speaks English well, and she successfully got an offer from [School], a private school in Australia, to study in Year [Number 1].
My daughter and I were granted a subclass 500 student visa and a subclass 590 student guardian visa on 7 January 2019 respectively, which were valid to 31 December 2020.
I lodged an onshore 600 visitor visa on 18 January 2021, which was refused on 18 February 2021 as the case officer found that I did not meet clause 600.223 in Schedule 2 of the Migration Regulations.
[Except] the visas mentioned above, I have never applied for or granted any other visas from Australia.
Clause 600.223 and How I believe I meet the Clause
As mentioned above, I was refused to grant a subclass 600 visa on 18 February 2021 as the case officer did not satisfy that I meet clause 600.223 in Schedule 2 of the Migration Regulations.
… I lodged a sc600 visa on 18 January 2021. My sc590 visa expired on 31 December 2020, thus, I did not hold a substantive visa when I submitted my 600 visitor visa application. Therefore, I do not satisfy Clause 600.223(1).
… The reasons why I consider myself to meet the Clause 600.223 (2) are as follows:
1. Regarding Clause 600.223 (2) (a)
I have never applied for or held a Temporary Work (International Relations)) visa (subclass 403) in the Domestic Worker stream. However, the Case Officer stated at the Decision Record that I hold or held a Temporary Work (International Relations) visa (subclass 403) in the Domestic Worker (Diplomatic or Consular) stream, which is a jurisdictional error.
Therefore, I satisfy the Clause 600.223 (2) (a).
2. Regarding Clause 600.223 (2) (b)
I satisfy Schedule 3 criteria 3001, 3003, and 3005, which are not necessary to be detailed. I am also required to meet the criteria 3004, that requires the applicant to satisfy three requirements if he/she didn’t hold a substantive visa when lodging a 600 visitor visa:
…
I must admit that because of my negligence, I failed to lodge a valid visa application before my 590 Student Guardian Visa and my daughter's 500 Visa expired. In October 2020, when I began to renew my and my daughter's visa, I found my daughter's passport was about to expire on [Date 1] December 2020. Because of my previous visa applications, I was informed by my agent in China that applicants’ passport must be valid for at least 6 months. I immediately took action by consulting the Chinese Consulate General in Melbourne to make an appointment for renewing a passport.
Because of the serious condition caused by COVID-19 and the second lockdown in Melbourne, passport application were no longer submitted in person at the Chinese Consulate General, but by appointment online and then submitted by mail.
Lockdowns in Melbourne
1st Lockdown 30/03/2020 - 12/05/2020
2nd Lockdown 08/07/2020 - 27/10/2020
3rd Lockdown 12/02/2021- 17/02/2021
4th Lockdown 27/05/2021 - 10/06/2021
5th Lockdown 15/07/2021 - 27/07/2021
6th Lockdown 05/08/2021 - 21/10/2021
Because of the large caseload of passport renewals at the Chinese Consulate General, I immediately called the Chinese Consulate General in Melbourne for assistance as the latest available date for appointment was at least a month later. The official informed me that because of the urgency of my daughter's case, they would give priority to help with the process. I, however, had to go through the normal process because my own passport would not expire until [May] 2021.
Approved by the Chinese Consul General in Melbourne, I mailed the documents for my daughter's passport renewal on [Date 1] December 2020. Despite the best efforts of the Chinese Consul General's officials to accelerate the process, the passport processing time was beyond
either my control or my daughter's. I did not receive my daughter's new passport until 2 January 2021, the day after my daughter's and my visa expired.
After my daughter received her new passport, I realized that I was no longer eligible to be her guardian because my 590 student guardian visa expired. The school arranged an Australian guardian for my daughter, and on 14 January 2021, I received the Confirmation of Appropriate Accommodation and Welfare.
My daughter was granted a second 500 student visa on 22 June 2021, valid until 15 March 2026. I, on the other hand, chose to lodge a 600 visitor visa application, hoping that after the 600 visa was granted, I could apply for another 590 student guardian visa to accompany my daughter to study in Australia.
II. I have compelling reasons to be granted the visa
In January 2021, my daughter was under [Age 2] and although the school had arranged a guardian for her, the outbreak of COVID-19 in Melbourne was so severe that on 12 February 2021, there was a third lockdown and everyone was quarantined at home, and travel was restricted. I was unable to contact the host family to accommodate my daughter. Also, at that time, minors were unable to be vaccinated and I was very concerned that my daughter would be at risk of getting infected by the COVID-19 if I did not take care of her myself. I contacted trusted friends in Australia to see if they could take care of my daughter, but they had concerns that my daughter would bring the virus to their families and that they would not be able to provide care for my
daughter if they were infected.
In addition, I have another reason that is difficult to talk about and something that I am reluctant to mention. [the applicant wrote of a sensitive event involving her daughter].
This is why I came to Australia to accompany my daughter and am unable to arrange a host family for her at the moment. She is now entering her teenage years and is changing both physically and psychologically. She becomes sensitive and emotional. At this time, she needs me to be around to take care of her and help her with her physical and psychological problems.
Since my daughter's birth, I have been taking care of her myself. As a mother, I have to do my best to provide her with the safest living and learning environment, so I have been her guardian in Australia since my 600 visa application. I accompanied with my daughter for the whole year of 2021, and even though Melbourne experienced lockdowns for four times during the year, my daughter did not panic or get infected by COVID-19.
My daughter administered her first dose of COVID-19 vaccine on 17 October 2021 and the second dose on 9 November 2021. After the lockdown of Melbourne was lifted on 21 October 2021, my daughter returned to school for study. Unfortunately, in early March 2022, my daughter was infected by the COVID-19. I was very worried and stayed with my daughter, providing her with 24/7 care and calming her down until her RAT showed negative on 27 March.
My daughter, who has not turned [Age 3] years, still depends on my care. I am really worried about how helpless and sad my daughter will be without me around to take care of her if she gets infected again, or if she gets hurt. Even though my daughter was vaccinated in late 2021, she was infected by the COVID-19 in 2022. Therefore, she is still at risk of COVID-19 reinfection even if she is recovered.
Moreover, according to media recently, Omicron subvariants BA.4 and BA.5 were detected. According to Richard Lessells, an epidemiologist, these variants from South Africa have led to increasing infection rates and hospitalizations, and are much stronger in regard to infectiousness. What is more, patient with the subvariants have been detected in Victoria.
Also, Australia has become colder because of winter coming, allowing the COVID-19 and flu to be more rampant. In fact, there has been cases of death from both flu and COVID-19 in Australia. More than 200 cases of childhood hepatitis of unknown etiology have been reported
recently in more than ten countries worldwide, with at least 4 deaths and some cases receiving liver transplants.
At this particular time, with such a serious global pandemic, I am reluctant to leave my child in the care of others. If my visa was not granted, my child would have to abandon her studies in Australia and return to China with me. I believe that I am the only one who can provide the care my daughter needs, and that I and my family can only rest assured if we are together. I am my daughter's emotional support and strong backing.
These are the compelling reasons for my 600 visitor visa application.
III. I have complied substantially with the conditions that apply or applied to the last of any visas held by me.
I was granted an Australian visitor visa on 6 December 2017 and a 590 visa on 7 January 2019. During the visa period, I have strictly adhered to the visa conditions and have never worked illegally, cancelled my insurance, or not lived with my daughter, etc.
My daughter is still a minor under [Age 3] years old. I sincerely wish that Member of the Tribunal to kindly consider my compelling circumstances and give me a chance to be granted a 600 visitor visa.

The applicant subsequently engaged a new representative, a registered migration agent.
On 27 May 2022 the applicant’s representative submitted the following materials on the applicant’s behalf:
-A written submission by the representative.
-Two further written statements from the applicant.
-A copy of the applicant’s daughter’s expired passport.
-A copy of an on-line appointment for the applicant with the Chinese Ministry of Foreign Affairs regarding passport renewal.
-A copy of the Chinese Embassy in Australia’s instructions for the on-line application and appointment for a new Chinese passport.
-A copy of email correspondence between the applicant and the Chinese Embassy regarding the renewal of her daughter’s passport.
-A copy of the applicant’s daughter’s new Chinese passport issued on [Date 2] December 2020.
-Copies of the service agreement and Form 956 between the applicant and her former ‘agents’.
-Copies of MARA disciplinary actions taken against the firm which formerly assisted the applicant.
-Evidence to link the applicant’s former ‘agent’ with the firm which was subject to MARA disciplinary actions.
-Copies of education documents relevant to the applicant’s education in Australia.
-Covid-19 updates from the Chief Medical Officer of Victoria.
-Information about the Omicron variant of the Covid-19 virus.
-The applicant’s daughter’s Australian school results.
The applicant’s further written statement contains the following and embeds extrinsic evidence relevant to her statements:
In my first statement, I admitted that because of my negligence, I failed to lodge a valid visa application before my daughter's and my visas expired. However, I must emphasize that I neglected the development of the pandemic, which has affected our lives seriously. I mentioned the delay in our visa application because we had to wait for my daughter's new passport. In July 2020, once I noticed my daughter's passport was about to expire, I logged on to the website of Ministry of Foreign Affairs of China for online appointment system on 3 July to search for the passport issuing matters. I filled out the basic information for the application online to obtain the file number, in which the first 8 digits shows the application date (Please refer to the following evidence). …
The system, however, showed that the Chinese Consulate-General in Melbourne was not open for appointment until further notice. It was July and there were another 5 months before our visa expired, so we were not in hurry and thought that the Consulate would open for appointment when the pandemic was under certain control.
We thus put the matter on hold. Neither of us could have predicted the development and severity of the COVID-19. During that time, the city was on lockdown, schools were closed, and our lives were completely disrupted. By October, 2 months before our visas expired, I started preparing the renewal documents and remembered that my daughter's passport was about to expire. Due to the hasty preparation of my first statement, I provided the incorrect expiry date of my daughter's passport, which should have been [November] 2020 (Please refer to the following evidence) …
According to my previous visa application experience, I was informed by my agent in China that applicants’ passport must be valid for at least 6 months in accordance with international practice. Most countries require passport validity at the time of entry to be more than 6 months. If the passenger obtains a visa to the country but the passport is valid for less than 6 months, he/she will be refused entry. There are also some regulations released by the airline, preventing those passengers whose passport validity is less than 6 months from boarding. I was concerned if my daughter's passport (not valid for 6 months) would delay the renewal of her visa, so I immediately took action and used the file number I previously obtained to log on to the online appointment system of Ministry of Foreign Affairs of China to check the passport issuing matters at the Chinese Consulate General in Melbourne. At that time, Melbourne was in its second lockdown and the Consulate remained closed.
Lockdowns in Melbourne
1st Lockdown 30/03/2020 - 12/05/2020
2nd Lockdown 08/07/2020 - 27/10/2020
3rd Lockdown 12/02/2021- 17/02/2021
4th Lockdown 27/05/2021 - 10/06/2021
5th Lockdown 15/07/2021 - 27/07/2021
6th Lockdown 05/08/2021 - 21/10/2021
We had no choice but keep waiting. It was not until 23 November 2020 that the Chinese Consulate General in Melbourne released the Notice on the measures taken to apply for passports and travel documents by online appointment and two-way mail that we could lodge a passport renewal application by mail instead of face-to-face after online appointment. (Please refer to the following evidence) …
After seeing the notice, I immediately logged on to the website to lodge an appointment. Because of the large caseload of certificate issuing, the latest available date for appointment was at least a month later, and there was no way for me to apply for visa renewal. I immediately called the Chinese Consulate General in Melbourne for assistance. The official informed me that because of the urgency of my daughter's case, they would give priority to help with the process. I, however, had to go through the normal process because my own passport would not expire until [2021].
Approved by the Chinese Consul General in Melbourne, I mailed the documents for my daughter's passport renewal on 9 December 2020. (Please refer to the following evidence) …
Please refer to the email confirmation with the consulate staff as follows ….
Despite the best efforts of the Chinese Consul General's officials to accelerate the process, the time of passport processing, document issuing, and mailing was beyond either my control or my daughter's. What is more, the COVID-19 at that time was severe, and the postal system in Victoria was affected, causing late delivery, damaged or lost letters and parcels. (Please refer to the following evidence) …
All of these uncontrollable factors contributed to the result that I did not receive my daughter's new passport until 2 January 2021, the day after my daughter's and my visa expired. After receiving my daughter's new passport, the agent advised that there was a 28 Days "Grace Period" for international students whose visa expires, and I could still submit a renewal application, so I immediately provided my daughter's student visa renewal documents.
Meanwhile, I realized that I was no longer eligible to be her guardian because my 590 student guardian visa expired. Therefore, I contacted the school for arranging an Australian guardian for my daughter, and on 14 January 2021, I received the Confirmation of Appropriate Accommodation and Welfare.
My daughter was granted a second 500 student visa on 22 June 2021, valid until 15 March 2026. I, on the other hand, chose to lodge a 600 visitor visa application, hoping that after the 600 visa was granted, I could apply for another 590 student guardian visa to accompany my daughter to study in Australia.
In 2020, during the process of getting a new passport and visa renewal for my daughter (3 July - 31 December), we experienced lockdowns and various restrictions, which truly disrupted our normal life and caused delays in people’s normal work.
From the outbreak of COVID-19 until now, neither of us could predict when the pandemic would end. As a foreigner in Australia, I was concerned every day about the number of cases, what the virus would do to my body, and what to do if I got sick. Frankly speaking, I spent every day in a state of stress and anxiety because I was worried about whether my daughter would be infected.
In addition, the pandemic of COVID-19 led to the lockdown of the city. Everyone was quarantined at home, and no one could go out without special reasons. School remained closed, and it happened to be Christmas holidays, preventing me from contacting the school to arrange a host family for my daughter. I had to take care of her myself during that special period.
As a full-time student guardian mother, I have always been fully focused on my child and I barely knew anything about Australian visa regulations. I was aware that I needed to lodge a new visa application before my and my daughter's visas expired to legalize our status while I accompanied my daughter to study in Australia. However, such unforeseen circumstances were beyond my anticipation.
I only knew that my 590 visa was closely related and tied to my daughter's 500 visa and did not know that there were other visa options such as me applying for a 600 tourist visa before the 590 visa expired and then switching to a 590 visa, etc. Therefore, I did nothing but kept waiting for the delivery of my daughter's new passport before I helped my daughter apply for a 500 student visa, while my 590 student guardian visa could not be lodged again because I did not hold a substantial visa. I had to apply for a 600 visa first, which led to my dilemma today.
If it was not for the pandemic that caused the lockdown of major Australian cities and the shutdown of Australian institutions, our passports could be issued quickly before the pandemic even without express processing way. In that case, I shall no longer witness the expiry of my daughter's passport, which prevented our 500 and 590 visas that were about expire from renewing.
All the factors mentioned above were beyond either my or my daughter’s control.
2.For reason two which may lead to the refusal of my 600 visa, " I have compelling reasons to be granted the visa ", my supplementary explanation is as follows
First of all, I would like to make a solemn promise again that what I have stated about the painful experience my daughter suffered is true. As a mother, I will not make untrue statements about my daughter's privacy and reputation.
[The applicant provided detailed information about sensitive events in China involving her daughter]
…
You can have physical cuts healed, but you may spend your life in healing mental wounds. I wanted to help her find things she was interested in and erase her inner fears and sadness with joy. So, in the following two years, I took my daughter on frequent trips. I wanted her to be able to discover the beauty of the world and feel the friendliness of more people. When we traveled to Australia in January 2018, the beautiful natural environment, cute koalas and kangaroos attracted my daughter. (Please refer to the following evidence) …
When my daughter told me how much she liked it here, my husband and I did not hesitate to send her to study here, while I accompanied her as a student guardian. I wish my daughter to start a new life and meet new friends in a new environment.
… we chose [School] in Melbourne where she is currently attending, a girls' school for both primary and middle school and a coeducational school for high school. My daughter entered Year 5 at [School] Primary School in February 2019 and has been its student since then. (Please refer to the following picture of her first day to the school) …
During my stay here, I took care of my daughter's life and her psychological changes. My daughter had low self-esteem and low self-confidence, and was afraid to communicate with her classmates and teachers when she first came to school. I knew that only by helping her find something she loved and focus on what she loved, she could find her happiness and confidence. Because happiness and self-confidence are the best cure for her. As a result, I enrolled her in extra art classes and encouraged her to participate in painting competitions because she loves drawing. In 2021, my daughter won her first prize in the Little Artists International Children’s Art Exhibition in Australia. (Please refer to the following evidence) …
In her music studies at school, she likes to play the [Instrument], but she does not have the courage to play alone on stage, so I act as her piano accompanist and accompany her on stage. (Please refer to the following evidence) …
Through two years of [Instrument] study, my daughter was awarded a school music scholar awards in 2021. (Please refer to the following evidence) …
Every improvement she makes is the greatest comfort to me. My efforts are not in vain and my daughter cannot live without my support and help. She has found something she loves here; music and painting make her feel happy and she is getting more and more confident. She also told me about her dream of getting into the University of Melbourne and majoring in design.
…
Since coming to Australia, I have never mentioned my daughter's experience to anyone. This is my daughter's privacy and I never want her to become an alien in the eyes of others, let alone feel inferior and ashamed of her experiences. This is why I have not been able to arrange a host family for her so far. If I send her to someone else's place for care, people who are unaware of her suffering will not know how to help her when my daughter has psychological problems. Therefore, only I, as her mother, understand her experience, know her pain, and can give her comfort, encouragement and support in time when she is confused. She is now entering her teenage years and is changing both physically and psychologically. She becomes
sensitive and emotional. At this time, she needs me to be around to take care of her and help her with her physical and psychological problems.
My daughter, who has not turned [Age 3] years, still depends on my care. I am really worried about my daughter's physical and mental health. Although the government has now lifted the restrictions, the COVID-19 virus exists, the outbreak is still not under control, and the number of daily confirmed cases remains high. Moreover, since the beginning of 2022, the COVID-19 in Australia becomes more rampant. Not only is Sydney and Melbourne experiencing record high levels of the COVID-19 pandemic, but the whole Australia has become one of the countries with the highest infection rate in the world, the second highest in the world among countries with a population of more than one million, behind New Zealand (1,566 cases per million people).
Combined with the fact that the weather in Australia is getting colder by the day, health authorities are warning that the COVID-19 and flu will appear at the same time during the winter. Besides, it is reported that three new subvariant of Omicron, BA.2.12.1, BA.4 and BA.5, have been detected in Australia, which are more contagious than ever (Please refer to the following evidence)….
At this particular time, with such a severe global epidemic, I am really worried about how helpless and sad my daughter will be without me around to take care of her if she gets infected again, or if she gets hurt, not to mention that my daughter has behavioral disorders left over from the trauma. I just cannot feel comfortable leaving my child in the care of someone else.
If my visa is refused, my child will have to abandon her studies in Australia and return to China with me. In that case, her studies will be affected deeply:
1. My daughter's Year [Number 2] studies had to be interrupted. As the lockdown of Melbourne was lifted in October 2021, schools started to provide face-to-face study for primary and junior high school students, and online classes were cancelled accordingly. Unless there are special circumstances (e.g., school closes because a large number of COVID-19 cases were reported, etc.), students will not be assigned to online classes. If I bring my daughter back to my country, she will not be able to continue Year 8 study, given the fact that there are no more online classes at school.
2. If my 600 visitor visa is not granted, I will not be able to lodge an onshore 590 student guardian visa. I will have to take my daughter back to China first and submit an offshore 590 student guardian visa in China to continue to accompany my daughter to study in Australia. However, the pandemic has rebounded in China and the epidemic prevention policy continues to be tightened. What is more, PRC State Immigration Administration stated the fact that the government strictly restrict the non-essential foreign travel of Chinese citizens, as well as issuance of entry and exit documents. (Please refer to the following evidence) …
Coupled with the air traffic control on the China-Australia flights, even if the Department of Home Affairs grant me the visa later, allowing me to have custody of my daughter again to accompany her to study, it is quite possible that my daughter and I will not be able to return to Australia immediately and thus, her studies will still be greatly affected. Therefore, it is the best option for her to stay in Australia to continue her studies.
3. If my 590 student guardian visa is refused, I will not be able to accompany with my daughter, preventing her from return to Australia to continue her studies. I have no choice but ask my daughter to continue her studies in China. I will be more than worried then, because the difference in curriculum and education system between China and Australia will obstruct my daughter from integrating into the Chinese junior high school environment quickly. She may need to be reenrolled in Year [Number 2] (the [number] year of junior high school in China). In China,
the middle school exam is one of the most important national exams that determines whether or not a child will be able to attend an elite high school, which is a serious and important matter for our daughter and for our whole family as it relates to the future education of our child. If we follow the normal curriculum plan, our daughter will face the middle school examination in 2023, and the huge change of learning environment is a very unfavorable factor for our daughter. I am worried about whether my daughter's already sensitive and inferior psychology can withstand the huge pressure of studying coupled with her adolescence.
In conclusion, under such pandemic of COVID-19, the need to ensure my daughter's physical and mental health, the differences in education between Australia and China, and China's epidemic prevention policies are all reasons why I need to accompany my daughter to continue her studies in Australia.
I believe that I am the only one who can provide the daily care and psychological support that my daughter needs. Only when I am with my daughter can I and my family rest assured that my daughter will be able to continue pursuing the things she loves freely and confidently.
These compelling reasons mentioned above are why I had to apply for a 600 tourist visa. I sincerely wish the Member of Administrative Appeals Tribunal could understand my inner pain as a mother and the difficulties I am currently experiencing. At such a special time and under such special circumstances, I beg your consideration on my compelling reasons from my child's point of view and interests, and grant me a 600 visitor visa. I genuinely hope to be given a chance to accompany my daughter's growth, while the chance belongs not only to me, but also to my daughter.
The applicant’s other written statement is 34 pages long and details her interaction with persons purporting to be migration agents who worked for a firm which was subsequently the subject of MARA disciplinary proceedings. The applicant explains that information was submitted to the department and tribunal by the persons without the applicant’s knowledge or authorisation.
The applicant appeared again before the Tribunal on 1 June 2022 to give evidence and present arguments. Her representative also attended the hearing. The following is a summary of she information she provided at the hearing:
a.She sought help from the people she thought to be migration agents on 4 November 2020. She asked them to help with her daughter’s student visa and her student guardian visa. She entered a written agreement with them to do so on 6 November 2020. She paid them money. They were supposed to apply for the visas on the applicant’s behalf.
b.Due to Covid she was also involved in a we chat working group with the agents. The agents did not give her any advice regarding the urgency of lodging her and her daughter’s visa applications.
c.The agents have now been de-registered for fraud.
d.She visited the Chinese Consulate website to enquire about the issuing of a new passport for her daughter in July 2020.
e.The compelling reasons for granting the visa involve [the applicant provided evidence about events involving her daughter].
f.If the applicant has to leave Australia there is no one here who can care for her daughter. She has no other family in Australia. The applicant’s husband is in China looking after his company. The applicant’s main concern is to look after her daughter.
g.The applicant has abided by all her visa conditions. She has never worked in Australia. All her focus is to look after her daughter. They live together by themselves here.
h.The applicant has not studied in Australia.
i.She intends to continue to comply with her visa conditions in Australia.
j.The income from her husband’s [business] is sufficient to support the applicant and her daughter in Australia. She can submit her financial records showing her bank statements and moneys received from her husband.
Post-Hearing Submission

On 3 June 2022 the applicant’s representative submitted financial documents showing money transfers to the applicant in Australia and her bank account statements.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
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. 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
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.
The last substantive visa held by the applicant was a subclass 590 Student Guardian visa, which ceased on 31 December 2020. Criterion 3001(2)(c)(i) and Criterion 3001(2)(c)(iii) therefore apply so that the relevant day in relation to the applicant is 31 December 2020.
The applicant applied for the visa, the subject of this review, on 18 January 2021. This is within 28 days after the relevant day.
As the visa application was made within 28 days after the relevant day, the applicant satisfies criterion 3001.
Criterion 3003
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
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.
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.
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.
Factors beyond the applicant’s control
The Tribunal has 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 judgement provides guidance on the interpretation of the test of factors beyond the control of a person. 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:
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.
The applicant has claimed two factors contributed to her lodging her visa application after the expiration of her substantive visa, namely the impact of the COVID-19 pandemic delaying the renewal of her daughter’s passport and the provision of negligent and/or unlawful migration assistance.
The Tribunal found the applicant a credible witness. She provided extensive reliable evidence to support her submissions. The Tribunal accepts that the applicant made substantial and practical efforts to try to ensure her and her daughter’s visa applications were made before the expiry of their substantive visas. The Tribunal accepts further that delays arose due to the factors she identified.
In the written service agreement dated in November 2020 between the applicant and a migration agent firm, the firm agreed to provide assistance to the applicant in lodging her daughter’s Student visa and her Student Guardian visa. The Tribunal notes this occurred well before the expiry date of the applicant’s substantive visa. The Tribunal considers it reasonable the applicant would rely upon the firm to provide a professional service. The Tribunal accepts the firm has been subject to MARA disciplinary procedures for actions which could readily include the matters the applicant complains of against them.
The Tribunal considers that the applicant has acted reasonably and responsibly in trying to ensure her visa was applied for in a timely manner. The Tribunal accepts that the applicant’s visa application was substantially delayed as a result of the restrictions and complications caused by the COVID-19 pandemic and by unnecessary delays and potentially negligent or unlawful acts by the migration firm she engaged.
The Tribunal further considers that these factors which prevented the applicant from lodging her visa while holding a substantive visa, were beyond her control.
Compelling Reasons
The applicant has submitted there are compelling reasons for the grant of the visa in that her teenage daughter is studying in Australia and the applicant needs to be here to provide care to her.
The Tribunal found the applicant’s description of her concerns for her daughter and the particular reasons why the applicant’s ongoing presence and support are essential to her daughter’s well-being, compelling.
The Tribunal considers it would be highly disruptive to the applicant’s life and potentially damaging to her security and emotional health if she had to either remain in Australia without her mother, or return to China suddenly without completing her education here.
The Tribunal accepts that if the applicant is granted the Visitor visa she would then be in a position to apply for the Student Guardian visa to be able to remain here to care for and support her young daughter.
In considering all the relevant circumstances the Tribunal finds there are compelling reasons for the grant of the visa.
Other Considerations
The Tribunal accepts the applicant would have been entitled to be granted a Visitor (Class FA) visa on the day the applicant last held a substantive visa had she applied prior to the last day the visa ceased.
There is no indication that the applicant has breached any of her visa conditions and the Tribunal is satisfied she has complied with them to date.
The Tribunal has considered whether the applicant intends to comply with visa conditions. The mandatory conditions applicable to the visa are 8101 (no work) and 8201 (no study greater than 3 months). The applicant has stated that she fully intends to comply with any conditions imposed on the visa. The Tribunal accepts that the applicant and her daughter are financially supported in Australia through her husband’s income and that there is no need for the applicant to work in Australia. The Tribunal therefore accepts the applicant intends to comply with condition 8101. There is no indication the applicant wishes or needs to study and the Tribunal accepts she intends to comply with condition 8201.
The Tribunal therefore accepts that she will comply with the visa conditions.
Conclusion
Given the above findings the Tribunal is satisfied that the applicant meets criterion 3004.
Criterion 3005
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 information before the Tribunal to indicate a visa has 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.
Accordingly, the applicant satisfies criterion 3005.
Clause 600.223
As the applicant meets the applicable schedule 3 criteria the Tribunal is satisfied that she meets cl 600.223 of Schedule 2 of the Regulations.
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
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.
Melissa McAdam
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.

[2022] AATA 3111

7 July 2022

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