Lin (Migration) - [2022] AATA 1404

Lin (Migration) [2022] AATA 1404 (13 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mingbo Lin
REPRESENTATIVE:  Ms Helen Chen (MARN: 1577428)
CASE NUMBER:  2111042
HOME AFFAIRS REFERENCE(S):          BCC2021/5435

MEMBER:Christine Cody
DATE:13 May 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 Visitor (Class FA) visa:
· Schedule 3 criteria 3001 and 3004 for the purposes of cl 600.223(2) of Schedule 2 to the Regulations.

Statement made on 13 May 2022 at 7:21pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – substantive visa not held at time of application – application made within 28 days after last substantive visa held – factors beyond applicant’s control and compelling reasons for granting visa – previous student visa application lodged one day out of time – COVID-19 restrictions, previous agent’s delay and misleading advice, and financial issues – continuing, successful study and substantial completion of higher course – significant cost of courses – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criteria 3001, 3004(c)
CASE
Liu v MIAC [2010] FMCA 60

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 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).
Application before the Department
The applicant is 26 years of age and is a citizen of the People’s Republic of China (China). He applied for a Visitor visa – Tourist stream on 12 April 2021. In his application form, the applicant stated that he would like to further his stay, his visa has expired, but his course will be completed on 21 July 2021.
His application was accompanied by documents including the identification page of his passport and his Confirmation of Enrolment (COE) in a Graduate Diploma in Architectural Science at the University of Sydney, which started on 24 August 2020 and was due for completion on 21 July 2021, and his student visa (Subclass 500) grant dated 2 June 2020 valid until 16 March 2021.
On 29 July 2021 the delegate requested further information relating to the Visitor (Tourist) (Subclass 600) visa application, noting that:
Departmental records indicate that your Student (subclass 500) ceased on 16 March 2021. At time of your visa lodgement you did not hold a substantive visa so therefore you must respond in writing whether there were factors outside your control preventing you from lodging an application whilst holding a substantive visa and whether there were any compelling reasons for the grant of the Visitor visa.
In response, the applicant explained that he was relying upon an agent (Ms Bin Guo) who had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Lin (Migration) [2022] AATA 1404
Case: [2022] AATA 1404
Decision Date: 13 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600 (Visitor), tourist stream, made by an applicant who did not hold a substantive visa at the time of application. The applicant had lodged their application within 28 days after their last substantive visa expired. The delegate had refused the visa, finding that the applicant did not satisfy Schedule 3 criterion 3004.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 criterion 3004, which necessitates the Minister being satisfied that the applicant is not holding a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with visa conditions. Additionally, the Tribunal had to consider whether the applicant would have been entitled to the visa if they had applied on the day their last substantive visa expired.

The Tribunal reasoned that the applicant's previous student visa application being lodged one day out of time, coupled with COVID-19 restrictions, delays and misleading advice from a previous agent, and financial difficulties, constituted factors beyond the applicant's control. The Tribunal also found compelling reasons for granting the visa, noting the applicant's continued successful study and substantial completion of a higher education course, which involved significant financial investment. The Tribunal concluded that the applicant had substantially complied with the conditions of their previous visas and bridging visas.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets Schedule 3 criteria 3001 and 3004 for the purposes of clause 600.223(2) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the Tribunal is satisfied the visa applicant meets the requirements of Schedule 3 criteria 3001 and 3004 for the purposes of cl 600.223(2).DECISION The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 Visitor (Class FA) visa:·Schedule 3 criteria 3001 and 3004 for the purposes of cl 600.223(2) of Schedule 2 to the Regulations.Christine CodyMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION 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. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Regulations. Relevantly to this case, they include cl 600.223. 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 satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005 (emphasis added). As noted above, the delegate found that the applicant did not satisfy the requirements of criterion 3004. Criterion 3004 provides: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.