Cui (Migration)
[2022] AATA 1638
•6 May 2022
Cui (Migration) [2022] AATA 1638 (6 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Junying Cui
REPRESENTATIVE: Ms Qing Bao (MARN: 1465363)
CASE NUMBER: 2109969
HOME AFFAIRS REFERENCE: BCC2021/419466
MEMBER:Lilly Mojsin
DATE:6 May 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 6 May 2022 at 8.15 am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – impact of the COVID19 pandemic – factors beyond the applicant’s control – travel restrictions – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004CASES
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
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 19 July 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 16 March 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 review, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because at the time of lodgement the applicant did not satisfy the requirements of Schedule 3, criterion 3004.
On 5 August 2021, the applicant applied to this Tribunal for a review of that decision, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 5 May 2022 via MS Teams video with the assistance of a Mandarin interpreter. In making arrangements to hear the matter via MS Teams during COVID, the Tribunal had regard to the legislative objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The Tribunal was able to interact with the applicants and the interpreter and all parties were able to maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearings provided a real opportunity to be heard.
The applicant was represented in relation to the review by a registered migration agent who did not attend the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether cl.600.223, set out in the attachment to this decision, is met.
On 24 May 2021, the Department requested the applicant address the delay in the application and enquired whether there were any factors outside the applicant’s control which prevented the applicant from applying within time and whether there were any compelling reasons for the grant of the visa.
The applicant responded on 30 May 2021 stating she did not understand English and had relied upon her daughter to complete the renewal application. The applicant explained her daughter had been travelling to other states in Australia during February and had forgotten to complete the renewal application.
The delegate was not satisfied that these were factors beyond the applicant's control which prevented the applicant from lodging the application for a subclass 600 Visitor visa whilst the holder of a substantive visa or that there were compelling reasons for the grant of the visa.
In a submission to the Tribunal, on 2 May 2022, the applicant described her previous migration history, stating she had typically remained in Australia for 1-month at a time to visit her grandchildren. In November 2019, however, the applicant explained she sought a longer stay due to the out-break of COVID-19. The applicant explained she cannot understand English, has limited social connections in Australia and has been living with her daughter in Adelaide during her stay. The applicant added she intended to return to China. However, she was concerned with China’s COVID-19 policies and therefore, decided to lodge this visa application instead. Unfortunately, the applicant’s daughter had become busy with work and was frequently travelling. Consequently, the applicant explained, her daughter missed the expiry date.
In the same submission, on 2 May 2022, the applicant expressed concern for returning to China in the current COVID-19 climate and pointed to reported city-wide lockdowns and potential food shortages to support their concerns. Further, the applicant stated she tested positive for COVID-19 on 27 April 2022 and believed this may impact her ability to return to China.
The Tribunal also received a statement from Xiaoyu Liu (Cherie), the applicant’s daughter, on 2 May 2022. The applicant’s daughter explained that during January and February 2021 she became busy with her café and did not realise until after the deadline that her mother’s renewal application had not been lodged. The applicant’s daughter further stated she had worked on all her mother’s previous visa applications and expressed concern for her mother’s welfare should she return to China under China’s current COVID-19 policies.
In a further submission to the Tribunal on 4 May 2022, the applicant referred the Tribunal to the latest updated regarding travel to China on advising travellers ‘exercise a high degree of caution in China’.
At the Tribunal hearing, held on 5 May 2022, the applicant, who had been diagnosed with COVID, explained she was experiencing shortness of breath and requested time to provide her answers. The Tribunal agreed to provide the applicant with time or any breaks she required. The applicant stated when her visa expired COVID-19 was breaking out. She wanted to remain in Australia. The applicant added that she was unable to lodge the visitor visa application herself. She said she could not speak English and requested her daughter to lodge the application on her behalf. The applicant explained her daughter was busy at the time and was unable to do so in time.
The applicant also stated that since this visa issue, she has tried to look after her own visa matters, rather than rely upon her daughter. She added that she has her entire social network in China and would like to return. However, due to border closures and other COVID-19 restrictions, the applicant says she would face travel difficulties and other barriers if she would return to China now. Additionally, the applicant explained she has recently contracted COVID-19 and this would see her face extra scrutiny from Chinese officials.
The applicant described her current physical condition as ‘horrible’. She said if she did attempt to return to China, Chinese officials would prevent her from doing so. The applicant was hoping to be able to remain in Australia until she recovered.
The applicant’s daughter also gave evidence to the Tribunal. The applicant’s daughter stated that she was responsible for lodging the visa application for her mother. However, at the time the visa was due to be lodged, she was travelling for work purposes and was unable to lodge the visa.
The applicant’s representative requested the Tribunal consider the current physical status of the applicant and whether a visa may be granted to enable her to recuperate in Australia.
REASONS AND FINDINGS
Clause 600.223(2) 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, and the last substantive visa held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.
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.
The applicant’s decision record, filed with the Tribunal, indicates the last substantive visa held by the applicant was a Visitor (Tourist) (subclass 600) visa which ceased on 1 March 2021. The applicant applied for a Visitor (Tourist) (subclass 600) visa on 16 March 2021 and was not the holder of a substantive visa at that time. Therefore, the applicant is required to satisfy the requirements of cl.600.223(2).
Having considered all the evidence and the submissions, the Tribunal finds that the applicant ceased to hold a substantive visa on or after 1 September 1994, being 1 March 2021.
In considering whether there are reasons which constitute factors beyond the applicant's control, the Tribunal has had regard to the decision of Smith FM in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318. The judgement provides guidance on the interpretation of the test of ‘factors beyond the control of a person’:
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 Tribunal accepts that the applicant cannot understand English, has limited social connections in Australia and has been living with her daughter in Adelaide during her stay. She has travelled in and out of Australia previously, stating she had typically remained in Australia for 1-month at a time to visit her grandchildren. The Tribunal accepts that the applicant requested her daughter to lodge the application on her behalf. However, while it accepts that the applicant was somewhat dependent on her daughter and was required to take steps to apply for a visa during a period of time when there was some confusion due to the COVID 19 pandemic the Tribunal considers that the applicant’s failure to apply for the visitor visa while she was the holder of a substantive was not caused by factors beyond her control.
The Tribunal notes that the applicant’s daughter was busy with work and was frequently travelling and stated to the Tribunal that she was unable to lodge the visa application in time and stated also to the Department she forgot. The applicant resides with her daughter. She does not claim she was unaware of the date of expiry of her substantive visa or had some cognitive impairment preventing her from understanding. Whilst she does not speak English she delegated to her daughter renewing the visa. It was within the applicant's control to be aware of the Department's visa requirements and to ensure compliance with those requirements.
The Tribunal is not satisfied, on the evidence before it, that the applicant was not the holder of a substantive visa at the time of application due to factors beyond the applicant’s control.
Accordingly, the Tribunal finds that the applicant does not meet the requirements of Schedule 3, criterion 3004(c). As the applicant does not satisfy criterion 3004(c), the applicant is unable to satisfy criterion 3004 in its entirety.
The Tribunal has sympathy with the applicant’s current health circumstances and the present conditions in China regarding returnees to China and the current circumstances dealing with the COVID pandemic. These are matters for Department consideration.
For the above reasons, the applicant does not satisfy criterion 3004.
As the applicant does not satisfy criterion 3004, the applicant does not meet the requirements of cl.600.223(2)(b) and accordingly cl.600.223.
It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Lilly Mojsin
MemberATTACHMENT - Extract from Migration Regulations 1994
Schedule 2
600.223
(1)If the applicant was in Australia at the time of the 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.
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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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