Li (Migration)

[2022] AATA 1854

Li (Migration) [2022] AATA 1854 (25 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ruolan Li

CASE NUMBER:  2202172

HOME AFFAIRS REFERENCE(S):          BCC2021/808806

MEMBER:Sheridan Lee

DATE:25 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The decision under review is affirmed

Statement made on 25 May 2022 at 12:56pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – quarantine requirements – application fee payment made by BPAY – factors beyond the applicant’s control – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004; r 2.12

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 February 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. The visa applicant applied for the visa on 24 December 2021. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.600.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal via telephone on 18 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, Ms Linlin Lu. The applicant was represented in relation to the review. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. On 24 December 2021, Ms Li applied for a Visitor (Tourist) (Subclass 600) visa. At the time, she did not hold a substantive visa. Departmental records report that Ms Li’s last substantive visa ceased on 18 December 2021.

6. Because Ms Li did not hold a substantive visa on the day she applied for the current visitor visa, cl. 600.223 (2)(b) of Schedule 2 to the Regulations required her to satisfy a number of criteria, which are set out in Schedule 3 of the Regulations: 3001, 3003, 3004 and 3005. Relevantly, criteria 3004 applied. Clause 600.223 and criteria 3004 are set out in full as an annexe to this decision.

7. In summary, criteria 3004 provides for the grant of the visa if:

   ·the applicant ceased to hold a substantive visa due to factors beyond their control,

   ·there are compelling reasons for granting the visa,

   ·the applicant complied substantially with the conditions of their previous visas and entry permits, and

   ·the applicant would have satisfied the criteria for the grant of the visa on the day they last held a substantive visa.

8. The Department wrote to Ms Li on 12 January 2022 regarding the factors outlined above. In response, the applicant outlined that she submitted and paid for the visa on 18 December 2021, however the application was not accepted by the Department until a later date.

9. The Tribunal received a statement from the applicant’s daughter, Linlin Lu, dated 10 May 2022. The statement outlined that Ms Lu had significant work commitments at the time her mother’s substantive visa expired. She assisted her mother to submit a new visitor visa application on 18 December 2021 and paid the charge of $1070 on the same day using BPAY. She received an acknowledgement that the application was received by the Department on 20 December and a notification that the application was invalid on 21 December 2021. Ms Lu then sent the necessary paperwork via post and the application was ultimately accepted by the Department on 24 December 2021.

10. Ms Lu apologised for not reading the payment instructions carefully and expressed concern for her mother travelling alone to China while quarantine requirements are in place as a result of COVID-19.

11. At the Tribunal hearing, Ms Lu gave evidence that her mother had entrusted her to complete the visa application on her behalf. She uploaded the relevant documents in November with the intention of reviewing them before lodging the application. A number of unplanned work commitments were raised in the intervening period, including the delivery of a presentation on 17 December 2021.

12. The applicant supplied the Tribunal with a Tax Invoice for the payment that was made by BPAY on 18 December 2021 and I accept this to be true. Nevertheless, as discussed with Ms Li and Ms Lu at the hearing, the Tax Invoice clearly advised that BPAY is not an appropriate payment option if the application is urgent. The invoice noted that “your application will not be submitted or processed until the BPAY payment is matched to it. Therefore, if:

    ·your current visa will cease within the next 3 days ; or

    ·a visa application requirement (e.g. Skilled visa Invitation) will expire within the next 3 days; or

    ·you are travelling within the next 7 days on a Bridging Visa; or

    ·you urgently need to apply for a visa;

13. please return to your ImmiAccount and make payment by an alternate payment method”.

14. The above information is also published on the Department’s website.

15. Regulation 2.12JA (1)(b) sets out that the visa application charge in relation to an Internet application must be paid by… “funds transfer, in accordance with the instructions given to the applicant as part of making the Internet application.” Regulation 2.12JA(2)(3) goes on to stipulate that “if the visa application charge is paid in accordance with paragraph (1)(b), the charge is taken not to have been received until the payment is electronically matched to the applicant's Internet application form.”

16. I accept that Ms Lu was assisting her mother to complete her application and the task was one amongst many competing interests. I understand that she was busy with work and the selection of BPAY to pay for the current visitor visa application was a genuine mistake.

17. Nevertheless, as discussed with the applicant and Ms Lu at the hearing, reading the instructions carefully and planning the application in advance were not factors beyond their control.

18. In the circumstances, I do not accept that the applicant ceased to hold a substantive visa because of factors beyond her control. As such, he does not meet criteria 3004 for the purposes of cl.600.223(2)(b) of Schedule 2 of the Regulations.

    DECISION

19. The decision under review is affirmed.

    Sheridan Lee
    Member

    ANNEXE 1

    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.

    CRITERIA 3004

    If the applicant:

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

    (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.