Lau (Migration)

[2022] AATA 1850

Lau (Migration) [2022] AATA 1850 (25 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yuk Ming Lau

REPRESENTATIVE:  Mrs Desislava  Hristova

CASE NUMBER:  2200793

HOME AFFAIRS REFERENCE(S):          BCC2021/2231134

MEMBER:Joseph Lindsay

DATE:25 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.223 of Schedule 2 to the Regulations.

Statement made on 25 May 2022 at 12:23pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – impact of the COVID19 pandemic – factors beyond the applicant’s control – compelling reasons – applicant dependent on her children for visa applications – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; 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 4 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).

2. On 25 May 2022, the applicant’s representative requested that the Tribunal make a decision on the information available to the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in the present case is whether the applicant meets the requirements of cl.600.223 of the Regulations. Cl.600.223 provides that;

   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:  (Tribunal emphasis)

   (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. (Tribunal emphasis)

4. The Tribunal notes that the applicant’s representative provided to the Tribunal a copy of the decision from the Department dated 4 January 2022, and written submissions dated 24 May 2022. The decision record states that the applicant lodged her FA600 Visitor- Tourist stream visa application on 18 November 2021 and that the applicant last held a substantive Visitor (Tourist) (subclass 600) visa which ceased on 03 November 2021.

5. The submissions included the following:

   My instructions are that Mrs Lau is in her seventies and has three children and six grandchildren. She is residing permanently in Hong Kong with her son, Shing Ng, his wife and their two children. They are a close-knit family unit. Mrs Lau has two daughters Wai Ng, being her eldest and Kuen Ng, being her youngest. Both her daughters have been residing in Australia for over 20 years since they moved here in 2001, they are Australian permanent residents. Mrs Lau has four grandchildren who are Australian citizens. Her daughters and their families are residing in Melbourne. Mrs Lau has been regularly travelling to Australia over the past 10 to 15 years to visit her daughters and her grandchildren, most often her trips were schedules between the months of November and February when she could spend quality time with her grandchildren over summer school holidays in Australia and when her daughters are able to spend time with her while away from their ongoing commitments and around the festive season. She travelled during other times of the year when her children could find cheap flights.

   I am further instructed that Mrs Lau grew up in a small remote village of China and did not receive formal education. Mrs Lau is communicating in Cantonese only. She does not read or write in Cantonese. She married her husband and father of her three children at about 17 years of age and was a housewife. In the past all family affairs where taken care of by her husband including matters such as banking and housing, etc. Although Mrs Lau and her husband are married for over 50 years, they have an estranged relationship and are not on speaking terms. As mentioned above she lives with her son and his family and any such matters that her husband used to take care of are now taken care of by her son and his family. In any daily task that requires reading or writing she is assisted by her children. While in Hong Kong she is assisted by her son and while visiting Australia by her two daughters. Mrs Lau does not speak English and she most certainly does not read or write in English. Every visa application that was made to the Australian government has been made by either one of her son in Hong Kong or by one of her daughters in Australia.

   Mrs Lau’s most recent arrival in Australia was on 26 November 2019 when she planned to stay with her family for about three months as per their usual arrangement. The family decided they wanted her to stay for a few more weeks for two reasons, they wanted to spend a few more weeks together and the news about the novel corona virus starting in China and commenced spreading causing havoc. Consequently, in early February 2020 they lodged a visa extension for further three months with the genuine believe that three months would be absolutely sufficient for the virus to be contained and for Mrs Lau to travel back home.

   The pandemic hit hard all over the globe in March 2020 and the family was certain the wanted to keep Mrs Lau here in Australia with them while the pandemic was raging. The risk of a lethal outcome should Mrs Lau fall pray to the virus was high for given her age. Hong Kong was not managing the response as well as they hoped to and to date still is not. They introduced 21 days mandatory hotel quarantine which only recently was reduced to 14 days. They had 5 deaths during hotel quarantine.

   No one in the family wanted Mrs Lau to be travelling during the uncertain times of the pandemic given the dire prognosis and the high risk and the potential lethal outcome for someone her age in case of contracting the virus while returning home to Hong Kong. For these reasons the family decided it was best to Mrs Lau to remain in Australia and her daughter Angie (Wai Ng) who personally drafted all visa applications lodged since Mrs Lau’s arrival in Australia in November 2019, which includes visitor visa applications lodged in February and May 2020, as well as the two subsequent visas from November 2020 and November 2021, and a bridging visa E.

6. In consideration of the information provided to the Tribunal, the Tribunal makes the following findings. The Tribunal accepts that the applicant does not speak, read or write English and she does not read or write Cantonese either. The Tribunal accepts that for any matters needing her to read and write she has been completely dependent on her children for many years. Since her arrival in Australia in November 2019 she has been completely reliant on her daughter for all of her visa applications.

7. The Tribunal accepts that the applicant had genuine intention to travel to Australia for a short-term visit and spend time with her daughters and grandchildren. The Tribunal accepts that the pandemic, border closures, lockdowns in Melbourne and the conditions in Hong Kong quarantine as well as her complete dependence on her children to take care of her visa applications were all events that were beyond her control.

8. Given the above findings, the Tribunal is satisfied that there were factors outside the applicant’s control preventing them from lodging an application whilst holding a substantive visa and the Tribunal is satisfied that there are compelling reasons for the grant of the visa. The Tribunal is satisfied that the applicant has complied with Criterion 3004. However, the Tribunal finds that the applicant is fully aware of the visa requirements and understands that any future such failures to abide by time limit requirements of visa applications may not be considered as reasonable excuses.

9. Accordingly, the Tribunal finds that the applicant satisfies cl.600.223 and is therefore eligible for the grant of the Class FA Subclass 600 Visitor visa.

   DECISION

10. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa: cl.600.223 of Schedule 2 to the Regulations.

    Joseph Lindsay
    Member