Chen (Migration)

[2022] AATA 817

Chen (Migration) [2022] AATA 817 (27 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bomin Chen

REPRESENTATIVE:  Mr Timothy Smith

CASE NUMBER:  2103693

HOME AFFAIRS REFERENCE(S):          BCC2020/2679456

MEMBER:Christine Cody

DATE:27 March 2022

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 27 March 2022 at 5:30pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Schedule 3 criteria – not holder of substantive visa at time of application – application lodged outside of relevant timeframe – request for referral for Ministerial Intervention – serious, ongoing and irreversible harm – unintended consequences of the legislation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3001

CASES

BET16 v MIBP [2016] FCCA 3165
SZRHA v MIAC [2013] FCA 531

SZRHA v MIAC [2013] FMCA 131

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of the Peoples’ Republic of China (China), and he applied for a Visitor visa – Tourist stream on 17 November 2020. His application was accompanied by a letter dated 17 November 2020, a personal statement and other documents. In his application form, the applicant stated that he would like to apply for a temporary visitor visa which would allow him to take a long farewell trip with his friends and relatives in Australia and have enough time to book a flight to return to China. In his statement he said that due to COVID-19, most airlines have suspended international flights, which is why he cannot return home. He also states he will be at risk of infection, which is a significant risk to his health. He wants to stay longer in Australia to say goodbye to friends and relatives in Sydney. Since interstate borders have reopened in Australia for Melbourne and Tasmania this makes it possible for him to meet his friend in Tasmania. The applicant outlines his 2-week travel plan in Tasmania. He has been unemployed since October 2020.

3. The delegate refused to grant the visa on the basis that on the date the application was lodged, the applicant held a WB-020 Bridging (Class B) visa, which had been in effect since 29 July 2019. A WB-020 Bridging (Class B) visa is not a substantive visa. The applicant had last held a substantive TU-500 visa on 6 September 2018 and thus the delegate found that the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. The delegate found, however, that the applicant did not meet Schedule 3 criteria 3001 and thus did not satisfy cl 600.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth).

4. An application for review was lodged with the Tribunal. The Tribunal was provided with a copy of the delegate’s decision record and submissions from the agent with accompanying documents.   

5. The applicant appeared before the Tribunal on 9 March 2022 to give evidence and present arguments by telephone. The Tribunal considered it was reasonable to conduct the hearing by telephone during the period of the COVID-19 pandemic restrictions and the applicant agreed to the hearing taking place by telephone. The applicant gave evidence with the assistance of an interpreter in the Mandarin and English languages. The Tribunal is satisfied that the applicant was given an opportunity to give evidence and present arguments. The applicant’s agent was present at the hearing and made submissions.

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

   CONSIDERATION

7. 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.

8. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Regulations. Relevantly to this case, they include cl 600.223.

   Clause 600.223

9. Clause 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 (emphasis added).

10. The issue in the present case whether the applicant meets the requirements of cl 600.223.

11. The applicant was in Australia at the time he applied for the visa. He confirmed that he did not hold a substantive visa at that time. His last substantive visa was a student visa, which is not one of the visas specified in cl 600.223. The issue thus becomes whether the applicant satisfies the Schedule 3 criteria, including criterion 3001.

    Does the applicant meet criterion 3001?

12. 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 cl 3001(2), that is, 28 days from the date that the applicant last held a substantive visa [6 September 2018].

13. The visa application was signed and lodged on 17 November 2020[1].

    [1] This information is also contained in the delegate’s decision record provided to the Tribunal by the applicant.

14. The delegate sent an invitation to comment on information dated 25 February 2021 noting that essentially it had been more than 28 days between the applicant last holding a substantive visa, and lodging his visitor visa application, indicating that he may not meet Schedule 3, criterion 3001:

    Adverse information received

    We are currently processing your application. During this process we received unfavourable information that may lead to a decision to refuse your application.

    Departmental records indicate that the last substantive visa you held ceased on 06/09/2018.

    There is no provision to grant a Tourist stream (subclass 600) visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. As you were the holder of a Bridging Visa B and did not hold a substantive visa within 28 days of your visa lodgement, you. A Visitor (subclass 600) visa therefore cannot be granted to a person in your circumstances.

    We now invite you to provide comment in relation to the information that you did not hold a substantive visa within 28 days of lodging your application for a Tourist stream (subclass 600) visa[2].

    [2] This information is also contained in the delegate’s decision record provided to the Tribunal by the applicant.

15. The applicant then appointed an agent who made submissions in response to the invitation to comment letter on 3 March 2021, including the following, and submitted that criterion 3004 should be waived:

    ·The applicant came to Australia in August 2013 with his initial student visa, the expiry date of which was 6 September 2018.

    ·On 21 May 2018, the applicant made the subsequent 188A visa application, whilst he was onshore, as a dependent visa applicant to his father’s 188A main visa application. A bridging visa A was granted on the same day.

    ·On 09 April 2020, the applicant made a request to withdraw his 188A visa application, having received a s 57 natural justice letter.

    ·Upon his request in writing, the Department withdrew the applicant’s 188A visa application on 23 November 2020.

    ·To avoid being an unlawful citizen, the applicant had to depart Australia before 28 December 2020. In the midst of the pandemic, the applicant had no other options to extend his visa, and could only apply for a 600 visa. The visitor visa application was received by the Department on 17 November 2020, with the subsequent BVC visa granted on 20/11/2020.

    ·The visa applicant could not even make a 408 visa application - Pandemic Event, as the Schedule 1 criteria for the 408 visa requires the visa applicant to make the visa application within 28 days after the day when the last substantive visa of the applicant was held.

16. The agent’s submissions of 8 March 2022 to the Tribunal stated that the applicant concedes that he does not meet criterion 3001 of the Schedule 3 criteria, and therefore does not satisfy cl 600.223 of Schedule 2. The background information previously provided was confirmed, and additional submissions were made: namely that the applicant’s father had lodged a business innovation visa and the applicant was listed as a dependent applicant; he was at the time aged 21 years. Dependent children over the age of 18 included in an application must be over 18 years of age, but not yet turned 23, and dependent on the primary applicant or the primary applicant’s partner. While the applicant met this requirement at the time of lodgement, “given the extensive processing times for this class of visa, the applicant was forced to withdraw from the application” when he later was over the age of 23 years; he then withdrew on 23 November 2020. It was submitted that, had the applicant been able to remain as a dependent upon this visa application then he would not have had to have applied for a visitor visa more than 28 days after he held a substantive visa. He was reluctant to return to China due to the pandemic. Supporting documents included information about China’s travel restrictions and travel advice, as well as documents relevant to the withdrawal and the IMMI grant notification of the father’s Subclass 188 application.

17. The Tribunal accepts the above claims, and has some sympathy for the applicant in relation to these matters and his position. However, the courts have held that, even if circumstances are sympathetic, the Tribunal has no discretion if an application is lodged outside a prescribed time[3].

    [3] SZRHA v MIAC [2013] FMCA 131 (Cameron FM, 14 February 2013). Upheld on appeal: SZRHA v MIAC [2013] FCA 531 (Nicholas J, 16 May 2013); BET16 v MIBP [2016] FCCA 3165 (Judge Smith, 14 December 2016) at [20].

18. As discussed with the applicant at hearing and acknowledged by the applicant and his agent, the applicant’s visa application was lodged more than 28 days after the expiry of his last substantive visa. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, as the applicant’s substantive visa ceased on 6 September 2018 and the application for a visitor visa was made on 17 November 2020.

19. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, the applicant does not meet the requirements of cl 600.223.

    Request for referral for Ministerial Intervention

20. The agent’s submissions stated submitted that the applicant’s circumstances come within the Minister’s guidelines for Ministerial Intervention.

21. Under s 351(1) of the Act, the Minister may substitute for a decision of the Tribunal in the Migration and Refugee Division a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest[4]. The powers under s 351 may only be exercised by the Minister personally[5] and are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he or she is requested to do so by the applicant, any other person (including the Tribunal) or in any other circumstances[6].

    [4] Sections 351 and 417; Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016) at [2] states that what is and what is not in the public interest is a matter for the Minister to determine.

    [5] Sections 351(3), 417(3) and 501J(4).

    [6] Sections 351(7), 417(7) and 501J(8). See also Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016) at [2].

22. The Minister’s guidelines indicate that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstance(s). The Minister’s guidelines list circumstances which may be unique or exceptional[7].

    [7] Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016) at [4].

23. It was submitted that there are compassionate circumstances regarding the age and/or health and/or psychological state of the applicant that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person. Further, it was submitted that there were unintended consequences of legislation (namely that his father’s visa was granted 3 years after the application was lodged; if this had occurred earlier then the applicant would not be in the position of having to satisfy criterion 3001). Additional arguments made before and at the hearing include that the applicant was holding a student visa, he was anxious about returning to China at the time, there were increasing restrictions on the ability to book a flight back to China, he was anxious about the risk of infection associated with long haul travel and Australia had limited access to vaccines at the time. The current quarantine requirements in China are excessive (14 days’ hotel quarantine that he needs to fund himself and an additional 7-14 days of home quarantine). It is submitted that social isolation has a negative impact on mental health and a prolonged period of quarantine would exacerbate this, and while some may only experience mild psychological distress, others may suffer more significantly. It is submitted that to subject the applicant to these conditions would be unreasonable and it would be more beneficial for him to remain in Australia with his family at this time.

24. When the applicant was asked why his case should be referred to the Minister, he said that he would like empathy from the Minister due to his complex situation regarding his age and psychological issues and he does not want to go back to China during the COVID-19 outbreak. The Tribunal asked whether he has a psychological condition and he said that he has severe anxiety and depression. The Tribunal noted that it did not have a medical report to that effect. He said that he saw psychologists many years ago but he doesn’t have a report. He said that he suffers embarrassment. He said that: he came to Australia to study in 2013 and his parents were not with him; he went through bullying and discrimination and it was hard to be without his parents; he developed anxiety and depression when he was pretty young; and the time he spent without his family placed more pressure on him, and it affected him even in Australia. The Tribunal asked when he last saw a mental health professional and he said he could not remember, but it could have been 2015.

25. The Tribunal does not have any current evidence of any mental health condition suffered by the applicant, and it does not appear on the evidence before it that quarantine will lead to the applicant suffering serious, ongoing or irreversible harm or hardship.

26. The applicant also said that because his parents and sister have migrated to Australia, they will take him to the psychologist here, and he will face less bullying and less discrimination and be more positive towards his future, and if he has a chance he will continue studying; that is his future plan. The agent said that his instructions are to apply for Ministerial Intervention and if it is granted he the applicant will apply for a student visa.

27. The Tribunal had some concerns in this regard as it was not very clear to the Tribunal as to how much the applicant had been studying during his last student visa. He said that he studied the English language and High School and a commercial certificate 4. However, when the Tribunal asked when he had received the last certificate/diploma, he said he has proof of graduation from Year 11 in around 2016; otherwise he did not get any certificates. When asked what he did between 2015 and late 2018 when his student visa expired, he indicated that he had attended (for a period of time that was not clear) a commercial cookery course but did not finish this and he had psychosocial issues of anxiety and depression. The Tribunal notes that although he claims not to have continued his course because of these issues, he told the Tribunal that the last time he saw a mental health professional was in 2015.

28. The Tribunal finds that the arguments as to the unintended consequences of the legislation are fairly persuasive and it has sympathy for the applicant’s circumstances in that regard.  However, the Tribunal has concerns that the applicant’s evidence as to the amount of study he did in the last 2 years of his student visa until its expiry in September 2018 was less than clear. In the circumstances, the Tribunal is not persuaded that it should submit the current matter to the Minister in accordance with the Guidelines as there are questions surrounding the applicant’s last substantive visa. It may be that there is more persuasive evidence available as to what the applicant did during the last 2 years of his student visa, which could be submitted by the applicant directly to the Minister, along with any further evidence considered relevant, in support of a direct request to the Minister for Ministerial Intervention.

29. The Tribunal has decided not to refer this matter to the Minister, but this does not prevent the applicant from referring the matter himself. 

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Christine Cody
    Member