Jiang (Migration)

[2021] AATA 2859

Jiang (Migration) [2021] AATA 2859 (18 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yongjing Jiang

CASE NUMBER:  2103519

DIBP REFERENCE(S):  BCC2020/2325884

MEMBER:Nicole Burns

DATE:18 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 18 June 2021 at 5:24pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 – Tourist stream – relevant substantive visa – application not made within 28 days after last held substantive visa – cancellation of return flight – varying advice received from departmental officers – not advised of 28 day requirement – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 3, criterion 3001, cl 600.223

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 Immigration on 3 March 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 September 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 the applicant did not satisfy cl.600.223 because at the time he applied for the visa he did not hold a relevant substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

4. The applicant gave oral evidence to the Tribunal by way of a telephone hearing on 18 June 2021. His son-in-law, Hanyu Jiang, also gave evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets the Schedule 3, Public Interest Criteria 3001 for the purposes of in cl.600.223(2) of Schedule 2 to the Regulations.

7. Clause 600.223(2) states as follows:

   (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 Consular) stream; and

   b)the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

8. Criterion 3001 states that the application is validly made within 28 days after ‘the relevant day’. In applicant’s circumstances, the relevant day is the last day when they held a substantive visa.

9. According to information contained in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review) the applicant last held a substantive visa when his visitor (Subclass 600) visa ceased on 26 March 2020. The current application was made on 17 September 2020.  As the application was not made within 28 days after the applicant last held a substantive visa, the applicant does not satisfy criterion 3001 of the Schedule 3 criteria.  Accordingly, the applicant does not meet cl.600.223 and the decision to refuse the application must be affirmed.

10. At hearing the applicant’s son-in-law explained the circumstances that led to the applicant not applying for the visa within 28 days of last holding a substantive visa.  He explained that the applicant knew his earlier visitor visa was due to expire on 26 March 2020 and had bought a ticket to return to China on that day.  However due to COVID that flight was cancelled, as were four more flights he bought tickets for subsequently.  On 21 March 2020 the applicant decided to apply for a waiver of his no further stay condition given the situation but did not receive a response from the Department.  Anxious about the applicant’s visa expiring his son-in-law said he called the Department several times talking to different officers who gave different advice.  Some suggested the applicant wait for his visa to expire then apply for a bridging visa which they did: they were not advised about the 28-day requirement. 

11. The applicant’s son-in-law was emphatic that the applicant and other family members have always respected the law including abided by relevant visa conditions; the applicant did not want to overstay on purpose; and whilst keen to return to China given COVID and the fact the applicant is in ill-health (he did not elaborate) it is too risky.  The flights are also very expensive and quarantine requirements burdensome.  His father-in-law also wants to stay in Australia until he receives his second COVID vaccination, booked for 2 August 2021. 

12. The Tribunal has no reason to doubt the applicant’s son-in-law’s evidence in this regard and has sympathy for the circumstances the applicant finds himself in.  However as explained at hearing, the Tribunal has no discretion to extend the 28-day period or waive it by taking into account such circumstances when determining if the applicant satisfies criterion 3001 of the Schedule 3 criteria

13. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, the applicant does not meet the requirements of cl. 600.223.

    DECISION

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

    Nicole Burns
    Member