Fang (Migration)

[2022] AATA 1097

Fang (Migration) [2022] AATA 1097 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Han Fang

REPRESENTATIVE:  Mr Thomas Baena (MARN: 1572447)

CASE NUMBER:  1836221

HOME AFFAIRS REFERENCE(S):          BCC2018/1125807

MEMBER:Russell Matheson

DATE:22 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

· Criterion 3004 for the purposes of cl.461.213 of Schedule 2 to the Regulations.

Statement made on 22 April 2022 at 1:26pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – did not hold substantive visa at time of application – factors beyond applicant’s control – believed visa would expire 5 years after date of entry, not date of grant – preparing to lodge applications but experienced technical difficulties with email and department’s systems – compelling reasons for granting visa – role in upbringing of children, who have done most of their schooling in Australia – close community ties – financial hardship – credible witness and persuasive evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 461.213, Schedule 3, criterion 3004(c), (d)

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 6 December 2018 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s 65 of the Migration Act 1958 (Cth).

2. The visa applicant applied for the visa on 9 March 2018. The Delegate refused to grant the visa on the basis that the applicant did not meet the criteria in criterion 3004 (c) and (d) of cl.461.213 to the MigrationRegulations1994 (the Regulations).

3. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. As discussed with the applicant at hearing, the Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s 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.

4. The applicant appeared before the Tribunal on 21 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

7. On 15 June 2013 the applicant arrived in Australia as the holder of a New Zealand Citizen Family Relationship (Temporary) Visa (UP) (Subclass 461) visa that was valid 21 February 2018.

8. On 9 March 2018 he lodged an application for a New Zealand Citizen Family Relationship (Temporary) visa in Australia on the basis of being the member of the family unit of his wife.

9. On 14 March the applicant was granted a Bridging Visa C in association with his Subclass 461 visa.

10. On 14 September 2018, the Department wrote to the applicant requesting a statement addressing the Schedule 3 criteria and any supporting evidence providing reasons and evidence of the circumstances that were both beyond his control and whether there were  compelling reasons that prevented him from applying for this Subclass 461 visa while not the holder of a substantive visa and to respond within 28 days. The applicant did not respond to the Departments request.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issues in the present case are firstly, whether the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control, and if so, secondly whether there are compelling reasons for granting the visa.

12. Clause 461 of Schedule 2 to the Regulations sets out the criteria to be met for the grant of a Subclass 461 visa. The primary applicant must, at the time of application, satisfy cl.461.213 of the Regulations which stipulates that the applicant must satisfy (relevantly for present purposes) criterion 3004. Criterion 3004 stipulates that it will be satisfied, if the Minister is satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and there are compelling reasons for granting the visa.

13. Evidence before the Tribunal shows that the applicant’s prior substantive visa ceased on 21 February 2018. The present visa application was lodged on 9 March 2018. Clearly the applicant was not the holder of a substantive visa at the time of lodgement of the present application.

14. On 14 September 2018, the Department wrote to the applicant requesting a statement addressing the Schedule 3 criteria and any supporting evidence providing reasons and evidence of the circumstances that were both beyond his control and whether there were compelling reasons that prevented him from applying for this Subclass 461 visa while not the holder of a substantive visa. As previously stated and indicated in the Delegate’s decision record the applicant did not respond to the Department’s request.

15. On 24 May 2021 the applicant provided a written submission (Doc Id 8454600 annexure A) to the Tribunal claiming that he responded to the Department’s request on 20 September 2018 via letter and email on 29 September 2018 explaining his situation.

16. The email dated 29 September 2018 it appears to have been sent to the correct address ([email protected]). The Tribunal finds this evidence problematic as there is no evidence of the Department receiving the correspondence from the applicant and the Tribunal is unable to determine if it had been sent by the applicant or received by the Department. Nonetheless, the Tribunal is prepared to give the applicant the benefit of the doubt and accepts that there may have been a glitch in the system and notes similar events have occurred in other cases and is not an uncommon event. The applicant acknowledged receipt of the Natural Justice letter sent to him by the Department and claims to have previously forwarded the following documents to the Department that includes the following:

    ·     A response letter dated 20 September 2018;

    ·     An email to the Department dated 29 September 2018;

    ·     Supporting letters from the applicant’s wife and daughter;

    ·     Daughter’s passport;

    ·     Daughter’s birth certificates;

    ·     The applicant’s New Zealand permanent resident visa;

    ·     Home loan bank statement;

    ·     Family photographs; and

    ·     The applicant’s tax statements.

17. The applicant claims in his written submission that the Delegate had failed to afford him procedural fairness because the Delegate had not considered his response (email on 29 September 2018) where he explained the circumstances that were both beyond his control and his compelling reasons for not applying the Schedule 3 criteria. As previously stated, the Tribunal has given the applicant the benefit of the doubt and has gone on to consider his submission.   

18. The applicant gave oral evidence and provided written submissions to the Tribunal regarding him not being the holder of a substantive visa because of factors beyond his control and whether there are compelling reasons for the granting of the visa.

19. The applicant claims that he made an honest mistake in believing that the expiration of his 5-year New Zealand Citizen Family Relationship (Temporary) visa started the day that he arrived in Australia on 15 June 2013 and he wrongly assumed that his visa would expire 5 years from that date in June 2018. The applicant claims that he had intentions to renew his visa application three months before the expiration of his visa and when going through the process of renewing his visa realised his visa had expired, he then applied online for a bridging visa. The applicant was contacted by the Department telling him that he had applied for the wrong type of visa and advised him to lodge a new application for a New Zealand Citizen Family Relationship and following this advice lodged a new visa application on 9 March 2018.

20. The applicant claims that he was preparing to lodge his visa application before it ceased but he had difficulties accessing the Departments system. He states that the email address where he had sent his previous visa application was a telecommunication company’s email address and was cancelled after he left New Zealand. He further stated that he tried to check his visa status online (VEVO) with a view to lodge his visa, but the site would not accept his online visa submission for unknown reasons. The applicant stated that on a later date he found a copy of his previous visa and then realised that it had just expired, and he applied for a bridging visa online and then was informed by the Department he had applied for the wrong type of visa and that he should reapply for his New Zealand Citizen Family Relationship visa. The applicant gave evidence that he accepted that he had applied for his new visa after his old visa had expired, that because he had to obtain a police check that took about 10 days to arrive, and he then lodged his new application on 9 March 2018 (16 days late). The Tribunal accepts that the applicant has misunderstood the period during which his visa was in effect and when he had to reapply for his visa. The Tribunal found the applicant a credible witness and his evidence persuasive and considers it appropriate to give him the benefit of the doubt.

21. In the circumstances of this case, the Tribunal is satisfied that at the time of lodgement of the present application the applicant was not the holder of a substantive visa because of factors beyond his control, and therefore satisfies the requirements of criterion 3004(c).

22. Criterion 3004(d) requires that there are compelling reasons for the grant of the visa.  I am satisfied the applicant has two daughters who have undertaken most of their schooling in Australia. The Tribunal is satisfied that the children are part of the Australian community, and these are compelling reasons for the grant of the visa.

23. The applicant and his wife gave evidence that they have two young daughters aged six and eight who attend primary school and the family have close community ties. The applicant stated that he plays a vital role in the upbringing of his daughters and to be separated from his children would cause significant stress to the family who are extremely close. The applicant further stated that if he had to relocate and apply for his visa offshore this would take a significant period of time resulting in long term separation from his children and wife and that they would suffer financial hardship. The applicant stated that both parents work full time, and they have a mortgage, and they would have difficulty meeting their debts and daily expenses on one wage. The sponsor stated that if the applicant was forced offshore this would have a devasting affect on their family and she would suffer financial hardship because she would have to give up work and care for the couple’s children as she has no other support other than her husband in Australia and she would not be able to handle the burden of raising her children on her own.  

24. The Tribunal is of the view the effects of parent-child separation are consistently negative on children’s social-emotional development, wellbeing and mental health. In this case the children are minors and separating them from their father at a young age would have a detrimental impact on their future development and result in an unstable family environment. The Tribunal also accepts that the family would suffer a significant degree of financial hardship.

25. The Tribunal is therefore satisfied that there are compelling reasons for granting the visa as provided for in criterion 3004(d).

26. Criterion 3004(e) requires that the applicant has complied substantially with the conditions of previous substantive or bridging visas. There is no evidence before the Tribunal that the applicant has not complied with the conditions of previous substantive or bridging visas. The Tribunal is satisfied the applicant meets the requirement that he has complied with the conditions of previously held visas.

27. Criterion 3004(f) requires that the applicant would have been entitled to be granted the visa applied for.  The applicant is a person referred to in criterion 3004 (a), and based on the evidence before me, the Tribunal is satisfied that if the applicant had applied for the visa when the holder of a substantive visa, he would have been entitled to the grant of the visa. 

28. Criterion 3004(g) requires that the applicant intends to comply with the conditions to which the visa will be subject. Based on the applicant’s submissions, the Tribunal is satisfied the applicant meets this requirement.

29. Criterion 3004(h) requires that if the last visa held by the applicant was a temporary visa, it was not subject to a condition that the holder not be entitled to a further entry permit. The last substantive visa was not subject to this condition so criterion 3004 (h) does not apply.

30. For the above reasons the Tribunal is satisfied that the applicant either meets the requirements of criterion 3004(a) to (h), or they do not apply. Therefore, the applicant meets the requirements of criterion 3004 for the purposes of cl.461.213.

31. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

32. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 461 visa.

    ·Criterion 3004 for the purposes of cl.461.213 of Schedule 2 to the Regulations.

    Russell Matheson
    Member