CHEN (Migration)

[2022] AATA 1293

CHEN (Migration) [2022] AATA 1293 (5 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gujun CHEN

CASE NUMBER:  2109198

HOME AFFAIRS REFERENCE(S):          BCC2021/374230

MEMBER:Nathan Goetz

DATE:5 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa

Statement made on 05 May 2022 at 5:31pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made more than 28 days after last substantive visa held – held bridging visa and attempted to apply within time but encountered system errors – no response to tribunal’s invitation to comment – no entitlement to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359A, 360(2), (3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3001(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs 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).

   BACKGROUND

2. The applicant identifies as 32-year-old male citizen of China presently located in Australia.

3. On 23 January 2020 the applicant arrived in Australia holding a visitor visa that was granted offshore on 20 January 2020. On 23 April 2020 that visa ceased.

4. On 31 July 2020 the applicant was granted another visitor visa. On 22 January 2021 that visa ceased.

5. On 20 February 2021 the applicant applied for another visitor visa. On 23 February 2021 a delegate determined that the visa application was invalid.

6. On 10 March 2021 the applicant applied for the visitor visa that is the subject of the review application. On 29 June 2021 the delegate refused to grant the visitor visa on the basis that the applicant did not satisfy Public Interest Criterion 3001 of Schedule 3 of the Migration Regulations 1994 (‘the Regulations’) for the purpose of cl 600.223 of Schedule 2 of the Regulations.

7. On 19 July 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the applicant the visitor visa.

8. On 20 April 2022 the Tribunal wrote to the applicant for two reasons.

9. The first reason was to invite the applicant under s 360 of the Act to appear at a Tribunal hearing commencing at 12noon on 11 May 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to a Tribunal hearing because the Tribunal was unable to make a decision on the review application favourable to the applicant on the basis of the material it had.

10. The second reason was to invite the applicant under s 359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review. The information is detailed later in this decision record. The letter advised the applicant that if she did not comment on or respond to the information by 4 May 2022 the Tribunal hearing would be cancelled and the Tribunal would make a decision on the review application without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing: ss 360(2), (3), 363A of the Act. The applicant did not comment on or respond to the information by the prescribed timeframe. Accordingly, the Tribunal hearing was cancelled, and the Tribunal made a decision on the review application on the material it had.

    CRITERIA FOR THE VISITOR VISA

    600.223

    (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.

    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.

    CONSIDERATION

11. The applicant signed the paper-based visitor visa application form on 28 February 2021. In that form, the applicant declared that he was presently located in Australia and wished to extend his stay in Australia until 30 October 2021. The reason for the stay was because “it’s difficult to book appropriate flights to leave Australia due to COVID-19 restrictions and international border closure, two negative test requirements by Chinese Government made the transit even more impossible.”

12. The applicant indicated that he currently held an Australian visa and specified his legal status in Australia as ‘other – bridging visa.’ The applicant detailed that he overstayed a visa. He detailed that he “missed the expiry date of visit visa due to border closure and don’t have proper flights to leave. Applied for the bridging visa E ASAP to make up. Tried to apply alternative visitor visa online (former tourist visa still expired less than 28 days ago) but blocked.”

13. Attached to the visitor visa application form were various documents not relevant to the issue being considered by the Tribunal in the review application. It is not necessary to detail them.

14. On 5 May 2021 the delegate wrote to the applicant under s 57 of the Act and invited him to comment on information that the delegate described as unfavourable that may lead to a decision to refuse to grant the visitor visa application. The delegate noted that that the last substantive visa the applicant held ceased on 22 January 2021. The delegate further advised that there is no provision to grant a visa to an applicant who applies for a visa more than 28 days after their last substantive visa ceased. The delegate noted that the applicant held a bridging visa but did not hold a substantive visa within 28 days of the applicant’s lodgement of the visitor visa. Therefore, the applicant failed to meet PIC 3001 and could not be granted the visitor visa.

15. On 13 May 2021 the applicant responded to the delegate. He wrote that he tried to apply with the visitor visa within 28 days. He then wrote that it was his fault to neglect the expiration date of his original visitor visa, and he missed the ‘renew-reapply after one year.’ He claimed that he tried to “make it up” but was “blocked by the system.” He directed the delegate to a screenshot of what appeared to be his ImmiAccount with a message that read “an error has occurred.” The error message detailed that ‘based on the details provided by the applicant one of the following issues was preventing the application from continuing.

16. Those details were that the applicant have a previous visa cancellation or refusal, or they do not hold an appropriate visa, or they have a condition on the current visa, or their location cannot be confirmed.

17. The applicant detailed that he had to apply for a bridging visa “in case of illegal overstay on 5 February” after he conducted a ‘Google’ search. The applicant wrote that he next applied for a visitor visa online after he communicated with an immigration officer who granted the applicant a bridging visa and ‘re-opened the system entry on 17 February.” The applicant claimed that he “did all the above steps within 28 days of expiry. Unfortunately, I was denied again to be requested using physical post mail to send the visitor visa application form.”

18. The applicant conceded that he knew it was unreasonable for him to overstay for one year without the visitor visa. However, noting his situation and the fact that he has money to support his stay in Australia, he requested a stay in Australia until October 2021 when he asserted that the border would reopen, and international flights would resume.

19. On 20 April 2022 the Tribunal wrote to the applicant under s 359A of the Act. The Tribunal raised with the applicant information that would be a reason or part of the reason for affirming the decision under review. The information was the following:

    “The particulars of the information are:

    Department records indicate that you last held a substantive visa (that is, a visitor visa) which expired on 22 January 2021. On 10 March 2021 you applied for another visitor visa.

    Schedule 3001(1) requires that you make a valid visa application within 28 days after the existing visitor visa expired, meaning that you needed to make a valid visitor visa application by 19 February 2021. As you did not make a valid visitor visa application by that date, it appears that you would not satisfy Schedule 3001(1). This means that you would not meet Schedule 3001. If you did not meet Schedule 3001, then you would not satisfy cl 600.223(2)(b) and would not meet the criteria for a grant of the visitor visa.

    This information is relevant to the review because it relates to your eligibility to meet the criteria for the grant of the visa. If we rely on this information in making our decision, we may affirm the decision under review.”

20. As noted previously, the applicant did not comment on or respond to the information.

    FINDINGS AND REASONS

21. The issue in the present case is whether the applicant meets PIC 3001 for the purpose of cl 600.223.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

23. The Tribunal accepts that the applicant made an application for a visitor visa on 20 February 2021, however that visa application was invalid. PIC 3001 requires the applicant to make a valid visa application within 28 days of the applicant ceasing to hold a substantive visa.

24. The Tribunal notes that the applicant may have held a bridging visa when he made a valid visitor visa application on 10 May 2021, but a bridging visa is not a ‘substantive visa’ as defined under s 5 of the Act.

25. The applicant may have experienced trouble lodging a valid visitor visa application within 28 days of his previous visitor visa expiring on 22 January 2021. Regrettably for the applicant, this is irrelevant to whether the applicant satisfies PIC 3001. The fact of the matter is that the applicant was required to make a valid visa application within 28 days of his substantive visa ceasing. The applicant did not do so. There is no discretion for the requirements of PIC 3001 to be waived for the purpose of cl 600.223.

26. The applicant does not satisfy PIC 3001. As a result of this, he fails to satisfy cl 600.223.

    DECISION

27. The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa

    Nathan Goetz
    Member