Jiang (Migration)

[2024] AATA 3198

Jiang (Migration) [2024] AATA 3198 (28 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Weiying Jiang

REPRESENTATIVE:  Ms Vicky Huang (MARN: 1688242)

CASE NUMBER:  2309208

HOME AFFAIRS REFERENCE(S):          BCC2023/823695

MEMBER:Tania Flood

DATE:28 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2024 at 12:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Class 600 (Visitor) – previous visa expired and applicant departed on bridging visa – factors outside applicant’s control and compelling reasons to grant visa – grandchild’s and other family members’ health – departmental advice and procedures – otherwise compliant stay – not currently in Australia – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 56, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), 600.411, Schedule 3, criterion 3004(c)

CASES
Secretary, DSS v Secara (1998) 89 FCR 151
Su v Minister for Immigration [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 8 June 2023 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 applied for the visa on 14 May 2023. 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(2)(b), which requires the visa applicant to satisfy Schedule 3 criteria, 3001, 3003, 3004 and 3005 of the Regulations.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223(2) because the delegate was not satisfied that the applicant satisfied Schedule 3 criterion 3004.  

5. On 16 August 2024 the Tribunal wrote to the applicant and invited her to attend a hearing on 3 September 2024.  On 26 August 2024 the applicant’s representative provided a written submission to the Tribunal and advised that the applicant consents to the Tribunal making a decision on the papers.

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

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   APPLICANT’S MIGRATION HISTORY

8. Department records indicate that the applicant was granted a Visitor visa on 13 November 2019.  She arrived in Australia on 5 December 2019.  She remained in Australia on a series of Visitor and Bridging visas for several years.  Her last substantive Visitor visa ceased on 5 May 2023.  On 15 May 2023 she was granted a Bridging visa and she departed Australia on 9 September 2023.

   APPLICATION FOR A TOURIST VISA

9. Department records indicate that the applicant applied for a further Visitor (Visa) (subclass 600) (Visitor visa) on 14 May 2023.  The application was refused on 8 June 2023.

10. In the application for the Visitor visa the applicant stated that she wished a further stay of up to 6 months until 10 September 2023.  Her reasons for further stay were to help look after her 3-year-old granddaughter while her daughter and son-in-law work in their full-time occupations.  She stated that she would return to China in September with her family so that they can look after each other during the travel.  In a letter of support provided by her daughter to the Department it is stated that the applicant came to Australia when her daughter was born in 2020 and stayed on in Australia mainly due to the COVID 19 pandemic.  It is stated that they intend to return to China together later in the year and this is why they are seeking a further Visitor visa for the applicant.

11. At the time of lodgement of the application the applicant did not hold a substantive visa.

    EVIDENCE SUBMITTED TO THE DEPARTMENT

12. On 17 May 2023 the Department sent a letter to the applicant requesting she address in writing the reasons why she did not hold a substantive visa at the time of lodgement, whether there were factors outside her control preventing her from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the visa.

13. On 23 May 2023 the applicant provided a letter to explain the circumstances which led her to lodging the Visitor visa application after her last substantive visa had expired.  In the letter the applicant stated she was planning to apply for a new visa by the end of April however her granddaughter contracted foot and mouth disease at the end of April followed by a severe cold in early May.  She stated that the whole family was also infected and they completely forgot about the application and only realised that they missed the expiry date after receiving a notification on 7 May.  She stated that she applied for a Bridging Visa E immediately and then made an application for a Visitor visa after she was advised to do that.  She stated that her granddaughter started attending childcare this year and becomes sick very often and she needs to help the parents to care for her as they both work full-time and don’t have enough leave.  She indicated that she hoped to remain in Australia until the end of winter when much of the sicknesses should have passed.  Additionally, she stated that she has never travelled internationally by herself and her daughter and son-in-law plan to travel back to China with her in September.  She ends by stating that she didn’t intend to stay in Australia unlawfully.

14. Based on the applicant’s claims and information provided, the delegate concluded that there were no factors that prevented the applicant from lodging a further stay visa within the validity of her substantive visa.  The delegate noted that it is the applicant’s responsibility to abide by the visa condition and make appropriate arrangements to remain lawfully in Australia.  Further, the delegate considered that there are no compelling reasons for the grant of the visa.

    EVIDENCE PROVIDED TO THE TRIBUNAL

15. On 26 June 2023 the applicant lodged an application with the Tribunal for review of the decision to refuse to grant her a Visitor visa.

16. On 26 August 2024 the Tribunal received a submission from the applicant in support of her review application. In the submission it is noted that the applicant is currently in China and is aware that cl.600.411 of Schedule 2 of the Regulations prevents the grant of the visa because the applicant is not in Australia. However, the applicant maintains that she satisfies the Schedule 3 criterion. The submission outlines the applicant’s understanding of the timeline of events which is as follows:

    -    The visa applicant’s Visitor visa expired on 5 May 2023.

    -    The visa applicant received a visa expiry notification on 7 May 2023 and her daughter immediately applied for a Bridging Visa E (BVE) on her behalf.

    -    On 8 May 2023 the applicant received some advice from the Department recommending that she lodge another Visitor visa application so they would withdraw the BVE application.

    -    On 14 May 2023 the applicant lodged a Visitor visa application onshore with an unlawful status.

    -    On 15 May 2023 the visa applicant was granted a Bridging Visa C.

    -    On 17 May 2023 the applicant was requested to provide more information regarding her application.

    -    On 23 May 2023 the applicant responded to the request to provide information.

    -    On 8 June 2023 the Visitor visa application was refused.

    -    On 3 July 2023 the applicant submitted an application for review to the AAT.

    -    On 10 September 2023, the applicant departed Australia.

17. It is argued that several factors in the process are unfair:

    1.    The applicant’s visa expired on 5 May 2023 but she was only notified of this on 7 May 2023.  If the notification was given 2 days before the visa expiry date the outcome would have been different.

    2.    The applicant was provided inconsistent advice by the Department during the process.  While she submitted the BVE application based on advice received in an email on 7 May 2023, she also received an advice from the status resolution team to submit a Visitor visa application and withdraw the BVE to get a favourable Bridging visa.

    3.    While the Department requested further information from the applicant pursuant to s56 for an ordinary visa applicant with no knowledge about immigration law and regulations she could not understand the exact meaning of “factors outside your control preventing you from lodging an application whilst holding a substantive visa” and “any compelling reasons for the grant of the Visitor visa”.  She tried her best to provide the factors and reasons from her perspective but it didn’t satisfy the delegate.

18. It is further submitted that the applicant was 61 years old and cannot speak and understand English.  She came to Australia because of her only daughter and all the legal issues, including visa applications, depended on her daughter.  It is stated that although the applicant has the obligation to understand and know her visa expiry date it is very difficult for an old lady to remember the date while she was busy helping her daughter to look after her grandchild. 

19. As to the factors outside the applicant’s control which prevented her from lodging an application whilst holding a substantive visa, submissions are made in respect of the childcare and health challenges associated with her granddaughter; the employment situation of her daughter and son-in-law and the applicant’s own health concerns.  It is submitted that in this case the applicant didn’t realise she was without a substantive visa until the department reminded her 2 days later because her daughter was too busy looking after a sick child while balancing work.  It is argued that if the daughter didn’t realise the applicant’s substantive visa was expired it was impossible for the applicant to be aware of it as she cannot understand English.  Further submissions are advanced as to why there are compelling reasons to grant the visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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 satisfied Schedule 3 criteria 3001, 3003, 3004 and 3005.

21. The issue in this case is whether cl 600.223 (b) is met, specifically whether the applicant satisfied Schedule 3 criterion 3004 which provides that the Minister be satisfied that:

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; and

    (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.

    Does the applicant meet the requirements of cl. 600.223?

22. The Departments records confirm the applicant was in Australia at the time she applied for her Visitor Visa on 14 May 2023.  The records show that her previous Visitor visa ceased on 5 May 2023.

23. The Tribunal finds that the applicant was in Australia at the time of application and did not hold a substantive visa and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.  On that basis the applicant must satisfy Schedule 3 criteria 3001 and 3004.

    Does the applicant meet criterion 3001?

24. Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day.  The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.

25. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 5 May 2023 and she lodged her application for a Visitor visa on 14 May 2023.  Therefore her application was lodged within 28 days of the relevant day and she meets criterion 3001.

26. She must also meet criterion 3004.

    Does the applicant meet criterion 3004?

27. As set out above, criterion 3004 includes a number of requirements.  Criterion 3004(c) requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control.

28. In considering whether there are reasons which constitute factors beyond the applicant’s control, the Tribunal has had regard to the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, which involved a Subclass 457 visa and Schedule 3 criterion 3004. While the application in that case was dismissed by the Court, the judgement provides guidance on the interpretation of the test of factors beyond the control of a person.

29. Smith FM, referring to the judgement 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:

30. 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 unable 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.

31. Smith FM goes on to refer to further discussion by Mansfield J making the point that it is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a 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. 

32. The Tribunal has considered all the available information, including the information provided in the visa application and the submissions and supporting documentation provided by her representative.  While the Tribunal is mindful of the disruption to routines which can arise due to illness in a family it is not satisfied that the applicant is not the holder of a substantive visa because of factors beyond her control. The evidence does not satisfy the Tribunal that the applicant, or her daughter, were unaware of the expiry date of the substantive visa.  Indeed, the applicant’s migration history prior to this event indicates they were well familiar with the requirement to remain compliant with visa conditions and capable of taking appropriate measures to do so.   The Tribunal has concluded, based on the evidence before it, that the situation arose due to forgetfulness and the absence of adequate measures, such as calendar or phone reminders, to ensure compliance with visa validity.    The Tribunal considers the onus was on the applicant to put in place appropriate measures to make certain that she and her daughter were aware of the substantive visa expiry date and to make any further applications before the expiry of the existing substantive visa.  Regardless of the fact there was illness in the family, the Tribunal is not satisfied on the available evidence, that the claimed circumstances precluded the applicant or her daughter taking the necessary action to make the visa application before the substantive visa ceased. 

33. While it is argued that the applicant missed the expiry date by just a few days because the department only sent its notification two days after the visa expired the Tribunal notes it is the responsibility of the applicant, not the Department, to ensure that she remains compliant with visa conditions.  Regardless of what information the applicant received from the Department after the expiry of her substantive visa the fact remains that she failed to ensure she lodged the visa application while still holding a substantive visa.  The Tribunal acknowledges the applicant’s response to the Department was made without representation and while the current submission expands upon the family’s circumstances at the time it does not in the Tribunal’s opinion alter the facts.   

34. The Tribunal accepts the applicant has a history of compliance with visa conditions and that there was no intention on her part to remain in Australia unlawfully.   However, the Tribunal remains unconvinced that it was factors beyond her control which led to her not holding a substantive visa at the time of application for the visa.  

35. Accordingly, the Tribunal finds that the applicant does not satisfy the provisions in criterion 3004(c).  This being the case, it is not necessary for the Tribunal to consider and make findings about whether there are compelling reasons for granting the visa under criterion 3004(d).

36. The Tribunal further notes that cl. 600.411 is also relevant in this case.  It provides that if the applicant is in Australia at the time of application the applicant must be in Australia at the time of grant.  It is not in dispute that the applicant is currently offshore and therefore the applicant is unable to meet the circumstances applicable to the grant of the visa.

    Conclusion

37. For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of cl.600.233.

    DECISION

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

    Tania Flood
    Member