Gong (Migration)

[2022] AATA 2077

Gong (Migration) [2022] AATA 2077 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wanli Gong

REPRESENTATIVE:  Mrs Jian Shi (MARN: 0958209)

CASE NUMBER:  2018298

HOME AFFAIRS REFERENCE(S):          BCC2020/1746782

MEMBER:Scott Clarey

DATE:23 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 23 June 2022 at 4:18pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made after last substantive visa ceased – factors beyond applicant’s control – reliance on son during COVID-19 restrictions and application made as soon as possible after receiving notice of expiry – age, health and lack of English – joint hearing with husband’s separate review on same issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criterion 3004

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 9 December 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (Ms Wanli Gong, herein Ms Gong) applied for the visa on 15 June 2020. 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.

3. The delegate refused to grant the visa on the basis that Ms Gong did not satisfy cl.600.223(2) because at the time she applied for the visa she did not hold a relevant substantive visa and she did not satisfy criterion 3004 in Schedule 3 to the Regulations.

4. The Tribunal held a hearing via teleconference on 26 June 2022. I note that at the Tribunal’s request, Ms Gong agreed for a joint hearing to be held in conjunction with her husband’s case (Mr Shizhong Gu, Tribunal case number: 2018299) because both applications are affected by similar issues for similar reasons. At the request of the applicants’ representative (Ms Shi), the applicants elected not to attend the hearing. The applicants requested that their representative and their son (Mr Huang) give evidence on their behalf. The Tribunal discussed this with Ms Shi at the start of the hearing and accepted this request. The Tribunal received evidence from Mr Huang and Mr Gu’s representative (Ms Shi), who is the authorised recipient for both cases. The Tribunal hearing was also conducted with the assistance of a Mandarin interpreter. The Tribunal is satisfied that Ms Gong was given a fair opportunity to give evidence and present arguments.

5. The Tribunal has also had regard to various submissions relating to the case, including those emailed to the Tribunal by Ms Gong’s representative on 16 and 17 June 2022.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant background

6. Ms Gong is a 69-year-old citizen of China. She last arrived in Australia in December 2019 on a on a Visitor (Tourist) Class FA subclass 600 visa until 11 June 2020. On 11 June 2020 this visa ceased. As was noted in the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), 11 June 2020 was the last day Ms Gong held a substantive visa in Australia. I note that it is not in dispute that Ms Gong was not the holder of a substantive visa on 15 June 2020 when the application under review was lodged.

   Evidence before the Tribunal

7. I note that in her submissions emailed to the Tribunal prior to the hearing, Ms Gong’s representative outlined various arguments for why there were compelling reasons for the grant of the visa and/or why the application was not submitted prior to Ms Gong’s last substantive visa ceasing on 11 June 2020. In a submission (dated 16 June 2022), Ms Gong’s representative outlined the reasons as follows:

   …Therefore, the applicants continued to rely on their son to renew their visa in Australia. However, since Mr. Huang was intensively occupied with critical matters regarding how to maintain their business survive during the lock-down period, he accidentally missed his parents’ visa deadline until he received the post visa expiry emails from the Department at 1.07 am, 13 June 2020. Then he immediately contacted his migration agent at around 7.30 am in the morning, trying to lodge an application urgently, but it had been too late to submit it online. Since it was Saturday, the paper application had to be pending to Monday (15 June 2020) before it could be express-posted to the Department.

8. I note also that Mr Huang (in a statement dated 16 June 2022) outlined the circumstances that led to his parents’ visa applications being lodged days after their substantive visas had expired as follows:

   …While I was drowning in the mess [related to the problems associated with the Covid lockdowns in Melbourne and his restaurant business], in the early morning of 13 June 2020 (Saturday), my wife received two separate post visa expiry notification emails from the Department regarding my parent’s visa expiry. I suddenly realized that I missed my parents visa deadline, so I immediately contacted my migration agent at around 7.30 am Saturday morning to find out if there was any way as remedy and asked them to try to make an online application immediately. However, I was advised that online lodgment was not workable for overdue Subclass 600 visa application and the application must be made in paper and by post. Since 13 June and 14 June 2020 were weekend, my agent was not able to post my parents’ paper visa application until Monday (15 June 2020). How I wished that if the notifications could come in before and even on the last day when my parents’ visa got expiry, I would have lodged the applications before it was becoming too late.

   I did feel deeply sorry for my parents as only two business day’s overdue made things totally different. My parents, who are senior people and cannot speak or understand English, had been fully relied on me to take care of their visa renewal in Australia. They have no ability to handle this by themselves. My failure to help them to lodge the visa application on time make them miss the deadline of visa expiry and it was the true factor out of their control given they have complete trust on me.

9. At the hearing, the Tribunal discussed with both Mr Huang and Ms Shi the issues outlined in their submissions to the Tribunal. Mr Huang explained that in the context of the Covid 19 restrictions happening in Melbourne, and the significant impact this had on his restaurant business, he was very busy and stressed at the time the substantive visas were about to cease and had overlooked the looming deadline (discussed further below).

10. For the following reasons, I have concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether Ms Gong meets the requirements of cl. 600.223.

12. That clause provides:

    1)    If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not:

    a)a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    b)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:

    i)   426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    ii)     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.

13. Ms Gong was in Australia on 15 June 2020 when he applied for the subclass 600 visa under review. It is not in dispute that she did not hold a substantive visa at that time. As outlined above, the last substantive visa held by Ms Gong was a subclass 600 visa that ceased on 11 June 2020. There is no suggestion that Ms Gong was the holder of one of the visas specified in cl. 600.223(2)(a). The issue is therefore whether Ms Gong satisfies the Schedule 3 criteria. The relevant criterion in this case is 3004. At the hearing, the Tribunal informed Mr Huang and Ms Shi that Ms Gong is required to meet criterion 3004 of Schedule 3.

14. As noted above, it is not in dispute that Ms Gong’s previous subclass 600 visa (her last substantive visa held in Australia) ceased on 11 June 2020. Accordingly, she meets paragraph (a) of criterion 3004 of Schedule 3 as he ceased to hold a substantive visa on or after 1 September 1994. she is not required to meet paragraph (b) of criterion 3004 because it is an alternate requirement to paragraph (a). Paragraph (c) of criterion 3004 requires that the Minister (or the Tribunal on review) is satisfied that the applicant is not the holder of a substantive visa because of ‘factors beyond the applicant’s control’.

15. I have considered and carefully evaluated whether reasons provided to the Tribunal that resulted in Ms Gong not being the holder of a substantive visa on the day she made the application under review (15 June 2020) amount to ‘factors beyond his control’. While I accept that Mr huang, due to his parents’ age and language issues, had chosen to assume responsibility for managing the visa process of his parents, and I have some sympathy for his situation at the time, I do not accept that this amounts to factors beyond Ms Gong’s control. From the evidence before me, it appears that the primary reason the visa application was not lodged prior to Ms Gong’s last substantive visa expiring (on 11 June 2020) was because Mr Huang was considerably stressed and preoccupied with the impact of Covid 19 restrictions on his restaurant business, which in turn led him to overlook the deadline for lodgment. Even if I accept that there were various other factors in play around this time, including issues related to Mr Huang’s health, and that of his wife, and general issues associated with the COVID-19 pandemic at that time, I do not accept that these amount to factors beyond the control of the applicant (Ms Gong) in relation to Ms Gong not being the holder of a substantive visa on 15 June 2020 when the application under review was lodged. I do not accept that issues related to Ms Gong’s literacy skills and/or age amount to factors beyond her control in relation to the abovementioned matters and in reference to the meaning of the term in relation to criterion 3004.

16. Ms Gong’s last substantive visa ceased on 11 June 2020 and the application for the subclass 600 visa under review was made on 15 June 2020. On the basis of the evidence before me, I therefore find that Ms Gong was not the holder of a substantive visa due to factors beyond her control.

17. I therefore find that Ms Gong does not meet criterion 3004 of Schedule 3. Therefore, she does not satisfy the requirements of cl. 600.223(2).

    DECISION

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

    Scott Clarey
    Member