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

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).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Chen (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 817
Decision Date: 27 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), made by Mr. Chen. Mr. Chen was in Australia at the time of his application and did not hold a substantive visa. The primary dispute concerned whether Mr. Chen met the criteria for the visa, specifically clause 600.223 of Schedule 2 to the Regulations, which requires applicants in Australia without a substantive visa to satisfy Schedule 3 criteria, including criterion 3001.

The legal issue before the Tribunal was whether Mr. Chen satisfied Schedule 3 criterion 3001. This criterion requires that an application for the visa be lodged within 28 days of the "relevant day," defined as 28 days from the date the applicant last held a substantive visa. Mr. Chen's last substantive visa ceased on 6 September 2018, and his application for the Visitor visa was lodged on 17 November 2020.

The Tribunal reasoned that Mr. Chen failed to meet criterion 3001 because his application was lodged significantly more than 28 days after his last substantive visa ceased. The Tribunal noted that there is no provision to grant a Tourist stream (Subclass 600) visa to an applicant in these circumstances. Consequently, the Tribunal affirmed the decision not to grant the visa. The Tribunal also decided not to refer the matter for Ministerial Intervention, though this does not preclude Mr. Chen from doing so himself.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION 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. 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 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). The issue in the present case whether the applicant meets the requirements of cl 600.223. 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? 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]. 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. 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 receivedWe 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.