Lin (Migration)

[2022] AATA 1962

Lin (Migration) [2022] AATA 1962 (3 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shengyao Lin

REPRESENTATIVE:  Mr Yunfeng Du (MARN: 0701102)

CASE NUMBER:  2119229

HOME AFFAIRS REFERENCE(S):          BCC2021/2107407

MEMBER:Angela Cranston

DATE:3 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) Subclass 600 visa.

Statement made on 3 June 2022 at 11.45am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – impact of the COVID19 pandemic – flight cancellations – family medical issues – factors beyond the applicant’s control – compelling reasons – COVID19 response of Chinese authorities – decision under review affirmed          

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 1 December 2021 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 2 November 2021.  

3.    In the application, the applicant stated the following:

My visa expiry date was 8/10/2021. I am currently applying for renewal within the 28 day time frame. I need the assistance of my daughter to complete my visa application. My daughter was admitted to hospital on 29/9/2021 as her Pfizer vaccination triggered an SVT heart condition episode. She was unable to submit my visa application until the last day. The application and payment was submitted on 8/10/2021. Because we chose the BPAY option the payment was received by the Department of home affairs on 11/10/2021. We received a letter on 12/10/2021 stating your application for a visa is invalid because it did not meet item 1236(3).  This is the only time I have not complied with visa conditions and these are the circumstances for my situation.

4.    Also provided was his passport stating he was from Fujian. Also attached was a discharge summary for Dan Lin.  Also provided was a bank account entry stating there had been a BPAY internet transfer to the Department of Home Affairs at 23:54 on 8 October 2021.

5.    The delegate refused to grant the visa and the applicant applied for review.

6.    The following statutory declaration was lodged from the applicant’s daughter dated 11 May 2022:

I brought my 4 children to visit my father, Shengyao Lin in China in September 2019. This was the first time I returned to China to visit my family since my mother passed away in 2004. I missed my father dearly because, despite several previous trips to visit Australia, his old age had made his ability to travel become more and more difficult. As a result, at the end of my trip to China, I asked him to come along with us when we returned to Australia.

Unexpectedly, there was a global Covid 19 outbreak a few months after he arrived in Australia. When the effects of Covid 19 got worse, many countries began to lock down and flight schedules were cancelled. As a result, when my father’s visitor visa expired in 2020, I helped him extend his visa for one year – in accordance with the Australian Government police for foreigners stranded in Australia at the time. Pandemic conditions had not improved in 2021 and Australia continued to implement lockdown policies.

At that time, although there were flights going to China, tickets were limited, hard to get and expensive. I could not find any direct flights back to my father’s residing city, this meant my father would have had to stay in a different Chinese city to undergo quarantine, before he could catch a connecting flight back to his home city to undergo yet another quarantine. Additionally, when I tried to book a ticket for my father to return to China, I was told that passengers over the age of 80 must travel with a companion – he was not allowed to board a plane alone but I did not have the capacity for finances nor time to be able to fulfil this accompanied travel requirement. 

My friend told me that after passengers landed at Chinese airports, they had to wait in the airports for 20-30 hours because of the complicated inbound passenger covid test procedures and passengers had to scan Health QR Code which needed an operative mobile phone. Many people did not know how to use them, especially elderly people, hence they would be stuck in the airports even longer.

My father was already over 80 years old, he was not familiar with such electronic devices – he could only use his mobile phone for simple conversation and WeChat not any other applications. Therefore, he simply would not be able to use the apps that were necessary for him to complete his arrival procedures in China. He does not even know how to connect his mobile phone to free airport Wifi or change his phone to a local SIM card.

In the past, whenever he returned to China from his Australian visits, we could not contact him to ensure his safety until his Chinese relatives picked him up at arrivals. I used to be concerned about his solo travel to Australia in the past, and I am now even more concerned that without a direct flight, I would not know what would be happening to him during his flight transfers. I worry whether he could handle having to stay in a Chinese airport for such long hours and undergo quarantine alone, I worry about his safety and health during his Quarantine period, given his old age and I also worry that the risk of catching COVID during travel would be much higher – it would be dangerous for him to be infected with Covid at such a senior age. Even outside of lockdown periods, I have hardly ever allowed him to leave home to avoid being infected.

The above concerns and considerations have been all along since the outbreak of the pandemic. So was in 2021, when I decided to help him extend his visa one more time. In September 2021, my father reminded me to help him lodge his application, I promised to do so but I sustained hart problems after taking my 2^nd Pfizer covid vaccination on 28^th September and had to be hospitalised until late evening of 30th September. It was a very terrifying situation not only to myself, but also to my father and family.

I had been thinking about having not yet helped my father extend his Visa and that time to do so was running out after I was discharged from hospital I immediately applied for is Visa extension via Internet but I was not yet fully recovered, I felt bad physically, I had recurring headaches and was feeling very weak. On the other hand I had to make my own GP and specialist appointments to further inspect my heart I also had to take care of my three children I felt tired and overwhelmed and all these issues made me physically and psychologically unable to complete applying for my father’s visa extension in one go.

I applied over the Internet on and off and finally filed out all the required information by 8th of October but when I reached the final step of making payment I did not know what happened. I tried many times but could not receive the payment confirmation code from my bank. I gave up making payment via Visa card after 11pm and used BPAY instead. As it was a Friday when I made the payment the Department of home affairs only received my payment on 11 October which had passed the Visa application deadline. Hence the application was invalid and I resubmitted the paper application as requested and required. However in the end the application for Visa extension was rejected. I am very worried that my father cannot stay in Australia before the global Covid outbreak improves especially the situations in China.

I’m a single mother and still have three children to raise. My two sons have asthma which require regular monitoring lifestyle adjustments and medical review. My youngest son is living with mental health illness the lockdowns and move to online study significantly worsened his symptoms. He was not able to attend school during the majority of year eight as a result he missed a lot of classes assessments and required a lot of collaboration between him, myself and the staff at school to provide support for him to meet minimum requirements. I would personally drive him to the front of his school at an hour of the day, sometimes multiple times a day to support him and his attendance.

My eldest daughter (fourth child) lives independently from me but has been living with ongoing mental health illnesses since high school. She is currently being treated via medication and therapy. I still continue to provide emotional psychological and financial assistance to her.

All these matters have immense pressure on me. During the past two years with my father living with me in Sydney he has given me great emotional and psychological support. Further more my father would also help me watch over my youngest daughter when I found myself overextended. Without my father been allowed to extend his visitor visa I really cannot cope with all those pressures from both in my family and my concerns of my father’s health if he must trip back by himself.

In summary I truly hope that my father is permitted to temporarily stay in Sydney until the worldwide Covid conditions have improved.

7.    The applicant appeared before the Tribunal on 13 May 2022 by telephone to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter: The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

9.    The applicant stated he was in the representative’s office. The adviser stated he understood the parties were now covid negative and the applicant confirmed that was the case.

1. The Tribunal put to the applicant that his visitor visa had ceased on 8 October 2021 and he had not applied for a visa until 2 November 2021 which meant that he needed to meet 3004 requirements that meant he need to show was not the holder of a visa because of factors beyond his control and there were compelling reasons to grant the visa. The adviser then stated that he thought the interpreter had provided a confusing interpretation of ‘compelling’ and suggested the word should be interpreted as ‘to be forced to’ rather than ‘in urgency’.

2. The Tribunal then said it would consider any reasons as to why the visa should be granted.

3. The Tribunal put to the applicant that the department had found that his daughter had been discharged form hospital on 29 September and that the submission that there was a technical problem of lodging the application on 8 October had not prevented him from lodging a visa application for further stay. The Tribunal also put to the applicant that it was unsure that was a strong reason as to why he should be given a further visitor visa.

4. The applicant stated the pandemic had not finished and he was facing difficulties, there was no direct flight back to his city and he had to transfer through another city. He also stated he could not scan the code or use a mobile phone.

5. The applicant’s daughter stated the applicant was elderly and transfers were a worry given she did not know how long he would be in transit. The Tribunal put to her the applicant had travelled to Australia and given it was only a visitor visa application, would need to return and put to her difficulties faced during his return may not be enough to grant the visitor visa. She stated in 2019 when he was not that old she had accompanied him and they had direct flights. The Tribunal put to her there was not a lot of difference between 2019 and 2022. She stated even in 2019 the applicant could not travel alone.

6. The applicant’s daughter stated she did not know how the applicant was going to connect with any of the flights.

7. The agent stated that while it understood the Tribunal had said it was the applicant’s obligation to return (which the Tribunal pointed out to him it did not say) the agent stated because of the pandemic the extra burden on customs and borders to comply with procedures meant the applicant needed to use computer applications which were new to him and as the applicant was senior and had little knowledge it was impossible to go through the extra control procedures. The Tribunal indicated that it was finding it difficult to accept that the Chinese authorities would not come across someone else who was elderly and found it difficult to navigate the airport given that older people travelled. He stated it was still very rare and his own experience was that his parents had experienced difficulties. He stated it was still exceptional given covid.

1. The agent also stated before the visa expired the applicant had looked for an agent to help but it was the pandemic, the agent would not see him and asked him to send his passport and documents by email but the applicant could not use the computer and had no choice but to rely on his daughter who after her second vaccination was hospitalised and after release, remained weak. He also stated his daughter’s children had medical conditions that is, her son had autism and daughter had psychological problems which put pressure on the applicant’s daughter. He also stated China was undergoing strict Covid measures. The Tribunal put to him they were not locking down Fujian. He stated customs were against people returning to China because they viewed that they were bringing chaos to the country so were unfriendly towards them and the applicant may be mistreated. He also asked the Tribunal that if the case was rejected, then to consider referring the matter to the Minister.

2. The applicant stated his was elderly and concerned about returning to China alone. 

Country Information

1. According to Tribunal inhouse research:

No information was located indicating official, national restrictions on the travel of elderly passengers to China.[^i]  Generally, China maintains international travel restrictions due to the COVID-19 pandemic and passengers are required to travel on direct flights to China.[^ii]

According to China Briefing, direct flights are operating from Australia to China through Xiamen Airlines, China Eastern Airlines and China Southern Airlines.[^iii]

Xiamen Airlines requires passengers aged 80 and older, citing the Xiamen authorities, to ‘be accompanied on the same plane by at least one adult passenger who is aged 18 and older and without chronic diseases or underlying health conditions.’[^iv]

China Southern Airlines advises of the various care options for elderly passengers (defined as over the age of 65). No requirement for elderly passengers to be accompanied on the flight was located on the China Southern website on the date of access (2 June 2022). However, the website does advise that when applying for ‘unaccompanied elderly services,’ to provide information of the person who will be picking the passenger up upon arrival.[^v]

No information regarding elderly passengers was located on the China Eastern website on the date of access (2 June 2022).

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The hearing was held during the covid-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by teleconference.

2. The Tribunal exercised its discretion (and pursuant to covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by teleconference on 13 May 2022 even though it had received a request on 6 May 2022 to postpone the hearing because,  the applicant and his witness were likely to be covid positive on that day and although it was ok to do the telephone hearing, it might be unsafe to the agent when they come to the agent's office to conduct the telephone hearing. The Tribunal declined the request stating that if the applicant could not be at the agent’s office, then he could still be contacted by phone.

SUBSTANTIVE MATTER

1. The issue in the present case is whether the applicant satisfies cl.600.223.

2. If a person lodges an application for this class of visa while they are in Australia and does not hold a substantive visa at the time the application is lodged, additional criteria for the grant of the visa apply. These criteria are contained in cl.600.223(2)(b) of the Regulations which relevantly provides that:

   If the applicant was in Australia at the time of application, and did not hold a substantive visa:

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

   For these purposes, a “substantive visa" means a visa other than a bridging visa, a criminal justice visa or an enforcement visa.

   Schedule 3 criteria include 3004 which states that if an applicant did not hold a substantive visa at the time of their visa application, then a decision maker must be satisfied that it is because of factors beyond their control and secondly, there must be compelling reasons to grant the substantive visa.

3. As recorded in the delegate's decision, a copy of which was supplied with the review application, the applicant last entered Australia on a visitor visa that ceased on 8 October 2021. The Tribunal is therefore satisfied that, at the time the applicant applied for the Subclass 600 Visitor visa on 2 November 2021, he did not hold a substantive visa.

4. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005. The Tribunal is satisfied that item 3003 is not applicable to the applicant's circumstances, and finds that he must therefore satisfy items 3001, 3004 and 3005. Failure to satisfy one of those items means that the applicant cannot satisfy cl.600.223(2)(b) and thus cannot be granted a Subclass 600 visa.

5. As the visa application was made within 28 days of the relevant day, and the applicant satisfies criterion 3001.

Is criterion 3004 met?

1. That criterion requires, amongst other things, that the Tribunal is satisfied that 'the applicant is not the holder of a substantive visa because of factors beyond the applicant's control' and that there are compelling reasons for granting the visa, in this case the visitor visa.

2. The applicant has stated that he was not the holder of a substantive visa at the time of application because of factors 'beyond his control' because of his daughter’s medical diagnosis and because they had made a mistake on his visa application and chose the BPAY option which meant the application was only received by the Department of Home Affairs on 11 October 2021 or after the applicant’s visa ceased on 8 October 2021.

3. The Tribunal accepts that the applicant has consistently stated that these were the factors beyond the applicant’s control and has provided contemporaneous medical and bank account evidence in support of those claims. The Tribunal therefore accepts that the applicant’s daughter’s medical issues and the ensuing distress and confusion and the applicant’s timely attempt to lodge a valid application which was rejected because the BPAY option was chosen were factors beyond his control and why he was not the holder of a substantive visa when he lodged his present visa application. However, the Tribunal must still find there are compelling reasons for granting the visitor visa.

4. The expression 'compelling reasons' is not defined for these purposes.

5. The compelling reasons submitted by the applicant as to why he needs a visitor visa are that the pandemic has not finished and he has to transit through a city which is a difficult procedure and he cannot use a mobile phone.

1. The applicant’s daughter also stated the applicant was elderly and transfers were a worry given she did not know how long the applicant would be in transit. She also stated that the applicant is unable to travel alone because he is over 80.

2. On the country information before it, the Tribunal does not accept that it necessarily follows that because the applicant is over 80 he is unable to travel alone. Even if the Tribunal is wrong, and the applicant must be accompanied on his return to China, then because the applicant is already over 80 then this situation will not change and may, with time become more difficult and is not in the Tribunal’s mind a compelling reason to grant another visitor visa.  While the Tribunal acknowledges that the applicant’s return may have potential financial and practical challenges, the Tribunal is not satisfied that the applicant is unable to return home. The Tribunal also considers flight costs and the Chinese authorities covid response which potentially includes Covid 19 testing and/or mandatory quarantine and related costs to be part of the vicissitudes of travel during a pandemic that is neither unique nor unexpected. Nor is it so compelling as to grant another visitor visa which would itself result in costs associated with the applicant’s continuing stay in Australia. The Tribunal also considers any difficulty the applicant may experience in transit in China where he speaks the language and can communicate not so compelling as to grant a visitor visa. Neither does the Tribunal consider that the applicant’s age or technological illiteracy so unique that the Chinese authorities have not previously planned for and accommodated such matters.

3. While the applicant’s desire to continue to provide support and assistance to his daughter and her family is natural and understandable as to is the applicant’s desire to travel outside of the worldwide covid, the Tribunal does not consider these reasons so compelling as to grant another temporary visitor visa.

4. In these circumstances, the Tribunal does not consider the applicant’s either singular or cumulative circumstances so compelling as to grant another visitor visa.

1. While the Tribunal has been asked but has decided not to refer this mater to the Minister, the applicant can still make such a request to the Minister.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) Subclass 600 visa.

Angela Cranston
Member

FOOTNOTES
[i] COISS conducted targeted searches in CISNET, PRC government sources, open source search engines, and media sources. No information was located among the English language sources consulted.

[ii] Please see China Briefing for an overview of current travel restrictions, 'China Travel Restrictions 2021/2022: An Explainer (Updated)', China Briefing, 19 May 2022, 20220602110323

[iii] 'China Travel Restrictions 2021/2022: An Explainer (Updated)', China Briefing, 19 May 2022, 20220602110323. See also, 'Airlines are returning to Australia – except for China', Fiona Carruthers, Australian Financial Review, 10 March 2022, 20220602112942

[iv] Please see the full policy at 'Travel Tips for Overseas Senior Passengers Returning to China by Air', Xiamen Airlines, 3 September 2021, accessed 2 June 2022, 20220602111257

[v] Please see the full policy at 'Elderly Passengers', China Southern Airlines, n.d, accessed 2 June 2022, 20220602111510