Hu (Migration)

[2022] AATA 2166

Hu (Migration) [2022] AATA 2166 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhongda Hu

CASE NUMBER:  2200953

HOME AFFAIRS REFERENCE(S):          BCC2021/2344470

MEMBER:Jane Marquard

DATE:21 June 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 21 June 2022 at 8:56am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made after last substantive visa ceased – factors beyond applicant’s control – COVID-19 restrictions in home country – reliance on daughter, who misunderstood requirements – application for another subclass visa made within time but bridging visa not granted automatically – combined hearing with wife’s review on same issues – decision under review affirmed

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

CASES
Liu v MIAC [2010] FMCA 60
Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Su v MIAC [2007] FMCA 318

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 7 January 2022 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 visa applicant is a man from China. His wife has also applied for review of a decision made by a delegate of the Minister for Home Affairs on 7 January 2022 to refuse the grant of her visa. The matters have been considered together by this Tribunal with consent of the applicant and his wife.

2. The applicant applied for the visa on 3 December 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 case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223, which requires a visa applicant to satisfy the Minister that he or she meets Schedule 3 criteria. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because at the time he applied for the visa he did not hold a relevant substantive visa and did not satisfy criterion 3004 in Schedule 3 to the Regulations.

4. The visa applicant appeared before the Tribunal on 15 June 2022 to give evidence and present arguments in relation to issues arising under the review. His hearing was held jointly with his wife’s hearing, with consent of the parties. Their daughter, Mengyu Hu, also appeared at the Tribunal hearing and assisted with her parents’ evidence with their consent. The hearing was conducted by telephone due to restrictions imposed by the COVID-19 pandemic. The applicants confirmed that they could hear well. The Tribunal is satisfied that the hearing provided a fair opportunity to be heard.

5. For the following reasons, the Tribunal affirms the decision under review. 

6. CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl 600.223.  That clause provides (in paraphrase):

   600.223            

   (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.

   Was the applicant in Australia at the time of application?

8. The Tribunal is satisfied that the applicant was in Australia at the time of application, being 3 December 2021. This is not an issue in dispute and was confirmed at the Tribunal hearing.

   Did he hold a substantive visa at the time of application?

9. The Tribunal is satisfied that the applicant did not hold a substantive visa at the time of application. As confirmed by the applicant at the Tribunal hearing, the last substantive visa held by him was a Visitor visa Subclass 600 which expired on 17 November 2021.

   Findings on Clause 600.223(1)

10. As the applicant was in Australia and did not hold a substantive visa at the time of application, cl 600.223(1) is not applicable.

    Did he hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream?

11. The last substantive visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream as it was a visitor visa. Therefore cl 600.223(2)(a) is not applicable. He must satisfy cl 600.223(b).

    Does the applicant meet cl 600.223(b) in that he satisfies Schedule 3 criteria?

12. The issue is whether the applicant satisfies cl 600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.

13. In regard to Schedule 3 criteria 3004, the Tribunal must be satisfied of all of the following:

    ·the applicant is not the holder of a substantive visa because of factors beyond his or her control – criterion 3004(c);

    ·there are compelling reasons for granting the visa – criterion 3004(d);

    ·the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant – criterion 3004(e);

    ·the applicant would have been able to be granted the visa if the applicant had  applied on the day he or she last held a substantive or criminal justice visa – criterion 3004(f);

    ·the applicant intends to comply with any conditions of the visa – criterion             3004(g); and

    ·the last visa or entry permit held (if any) 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 – criterion 3004(h).

    Is the applicant not the holder of a substantive visa because of factors beyond his control (3004(c)?

14. The Tribunal has considered the visa applicant’s reasons for not being the holder of a substantive visa at the time of the application for the visa and whether this was because of factors beyond his control.

15. The applicant made the following submissions to the Department:

    Our Visitor Visas expired on Nov. 17, 2021. We obtained Bridging Visas on Nov. 23. This means we had a 5-day overstay from Nov.18 to Nov. 22. The reason for our overstay is as follows. My daughter Mengyu Hu submitted an application for family sponsored visas for us on Nov. 16, 2021 before our previous visas expired. We received submission confirmation on Nov. 17 (please see attached screenshot). We thought we would be granted bridging visas automatically as our names are on the list of applicants, but we did not receive anything. After one day we realised we needed to check the situation and we started attempts to contact the Department of Home Affairs from Nov. 19, details as follows. On Friday Nov. 19 at 3pm, we phoned 13 18 81 and were waiting for 8 minutes, no one answered us. On Saturday Nov. 20 and Sunday Nov. 21, we could not do anything. On Monday Nov 22 in the morning, we went to the Department of Home Affairs office in Perth and were told at the gate that we needed to make an appointment first via 13 18 81. Then we went back and phoned on 13 18 81. At 12:16 pm we phoned 13 18 81 hoping to make an appointment with the Department of Home Affairs office. However, still no one answered us after waiting 24 minutes. At 3:02 pm we phoned again, waiting for 12 minutes, no one answered. On Tuesday Nov. 23 we felt frustrated and had no ideas what we needed to do about our visas. My daughter Mengyu Hu decided to apply for a Bridging visa E for us on that day. After submitting application, one lady phoned us enquiring about our situation, and she did not know what happened about the family sponsored visas we had applied for. She issued bridging visas for us immediately and suggested we phone 13 18 81 again to see what happened about the family sponsored visa. We tried to call again but the line of 13 18 81 was still busy and it seemed like we would never get through. On Nov. 25, my daughter Mengyu filled in an online Visitor Visa application, attached the required supporting documents, and submitted it. On Nov. 29, we received a notice saying our application is invalid and we need to apply in paper form 1419. On Nov. 30, we mailed application form 1419 and supporting documents via express post. The tracking record shows it arrived in Sydney on Dec. 3, 2021. We do not speak English and my daughter is not an English native speaker. We think we might have misunderstood the family sponsored visa application requirement, which caused our overstay and prevented us from lodging an application whilst holding a substantive visa. We are sorry for any misunderstanding and hope that someone will assist us in resolving the situation.

16. Further submissions were provided as follows to the Tribunal:

    I am Mengyu Hu, the daughter of applicants Zhongda Hu and Fenglan Guan. My parents authorised me to handle their visa applications. May I update the recent situation in China which severely stops my parents from travelling back to hometown—the city of Zhengzhou, China?

    New Lockdown in Zhengzhou

    We just got the news from my brother living in Zhengzhou, which has started another lockdown from May 4 (please refer to link 1 and link 2). Although the local government says new measures would be subject to adjustment after May 10, many residents in Zhengzhou believe the lockdown will be extended. Because people have learned a lesson from Shanghai, which has experienced Lockdown for more than a month (please refer to link 3 and link 4). Initially Shanghai government claimed the lockdown would be a few days, however it has been 5 weeks with no date announced for release so far. Due to Chinese government “Zero Policy” on covid, more and more cities in China are experiencing or will be experiencing lockdown which cause more difficulties for travel (please refer to link 5).

    A daughter’s wish As a daughter, I hope my old parents who are 84 and 78 years old can stay in Australia a bit longer waiting for things being further settle down, then travel back to hometown in China safely.

17. The applicant also provided links to a number of news articles about recent COVID-19 lockdowns in China. An article in Reuters on 3 May 2022 referred to new COVID-related restrictions in Zhengzhou until 10 May 2022, including working from home. An article on 3 May 2022 on the ABC referred to a five-week lockdown in Shanghai. An article in April 2022 referred to more than half of China’s biggest cities being under some form of lockdown measure.

18. The applicant’s daughter made oral submissions to the Tribunal at the hearing on 15 June 2022 as follows:

    ·She said that she made a mistake and applied for her parents’ visitor visas after the expiry of their substantive visas.

    ·She said that her parents’ last substantive visas expired on 17 November 2021. She submitted an application for ‘Family Sponsorship’ visas on the night of 16 November 2022. She said that the forms were long, and on the last page of the application she noticed a screenshot of a summary with her parents’ names on it. She thought that this meant that her parents had already submitted their visitor visa applications.

    ·She said that her parents did not receive automatic bridging visa applications after she submitted the Family Sponsorship visas. In previous visa applications, they had been granted bridging visas straight away so she realised when they did not get them, that something was wrong.

    ·She said that she tried to call the Department on 19 November 2021 but could not reach them. She was not aware at that time that her parents had not applied for visitor visas. She said that she could not contact anyone over the weekend. On 22 November 2021 the Department’s offices were not open due to the COVID-19 pandemic, and she kept trying to contact them. She then applied for Bridging Visas E for her parents. She said that someone called her and she assumed this person was from the Department. This person said that she could apply for visitor visas for her parents, and on 3 December 2021 she applied for the visas.

    ·She submitted that she made a lot of effort to try and solve the problem. She said that applying for visas during the term of the prior substantive visas was beyond her parents’ control as they do not understand English and she has only limited English. She said she came to Australia in 2008 but was in her 30’s, so her English is poor. She works as a tutor in mathematics. She said that her parents have travelled to Australia on a number of occasions. This was the fourth time, and each time they had visited for three to four months. On this occasion, they were meant to leave in March 2020, but the border closed. She said that flights had not resumed so they could not take the usual weekly flight from Perth to China.

    ·She submitted that her parents have always complied with visa conditions in the past.

    ·She said that the Chinese Embassy requires a COVID test seven days prior to, and at the time of travel, as well as 14 days quarantine in a facility, and then another seven days home quarantine. She said that there is no direct flight from Perth to China. She said that her parents are elderly, and the flight could be risky. She would like her parents to remain in Australia for three to six months until it is easier to travel. She said that she is a migrant so hopes the Tribunal will understand that migrants can make mistakes. She tried to resolve the issue as soon as she could.

    ·Her parents said that they did not want to add anything to her evidence and relied on her submissions.

19. The Tribunal has carefully considered the submissions. The Tribunal acknowledges that it is unfortunate that the applicant’s daughter made an error which resulted in the applications not being made within the terms of their prior substantive visas. However, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa when the application was made because of factors beyond his control. Although the applicant relied on his daughter, who made a mistake, it was within his capacity (through his daughter or himself) to apply within the term of the substantive visa. The family had had substantial interactions with the migration system in the past and would have been familiar with the Department website. It is clear from the Department website that a visitor visa must be applied for while an applicant has a substantive visa.[1] When this was put to the applicant’s daughter at the Tribunal hearing, she said that usually they had a visitor visa with a one-year limit. During the pandemic, it was difficult to get documents from China, so she thought she would apply for the Sponsorship visa and misread one part. This mistake led to the current situation. The Tribunal has sympathy for the applicant as he relied on his daughter who made a mistake. However, in light of judgments in Su v MIAC [2007] FMCA 318 and Liu v MIAC [2010] FMCA 60, the Tribunal is not satisfied that the situation was beyond his control.

    [1] Visitor visa (subclass 600) Tourist stream (apply in Australia) (homeaffairs.gov.au)

20. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 involved Schedule 3 criterion 3004 in the context of a Subclass 457 visa. While the application in that case was dismissed by the Court, the judgment provides guidance on the interpretation of the test of factors beyond the control of a person. Smith FM, referring to the judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17] that two useful points emerge from that case:

    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.

21. In the case of Su[2], the court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that It was difficult to regard as beyond control an event caused by forgetfulness or misunderstanding on the part of the person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.

    [2] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

22. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. The test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

23. In this case, similar to that in Su, there was forgetfulness or misunderstanding. The court found in Su that it was difficult to regard as beyond control an event caused by forgetfulness or misunderstanding. As in Lu, lack of English and advice received does not mean it was not within the applicant’s capacity to ‘appreciate what was needed and to perform an action which would have avoided the event occurring’, or that in a practical or realistic sense he was not able to do so.[3] Although it is clear that the applicant and his family made numerous attempts to rectify the situation once they realised that a mistake had been made, they did not take action to avoid the event occurring.

    [3] Su v MIAC [2007] FMCA 318

24. Although the applicant has always complied with visa conditions and the mistake was inadvertent, the Tribunal is not satisfied for the reasons set out above that the applicant was not the holder of a substantive visa at the time of application due to factors beyond his control. The issue of departure for this elderly applicant, and availability of flights to China, is an issue to be resolved with the Department.

25. The Tribunal is not satisfied that the applicant meets the requirements of criterion 3004(c).

    Conclusion

26. For the reasons the Tribunal has given above, the Tribunal is not satisfied that the applicant meets the requirements of criterion 3004. 

27. Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl.600.223.

    DECISION

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

   Jane Marquard
   Member