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

1. 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

2. 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.

3. 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.

4. 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.

5. In response, the applicant explained that he was relying upon an agent (Ms Bin Guo) who had misled him on an ongoing basis. He is continuing his studies at Sydney University and wants to complete his studies. He attached correspondence with the University showing a desire to transfer to a Graduate Diploma in Architectural Science (Sustainable Design). He said he had had difficulties in paying the fee as a result of the COVID-19 pandemic; his parents had been providing him with an allowance which had reduced due to the impacts of COVID‑19 on the family business. He thus needed to work part-time, which he did, in addition to studying 4 courses for his diploma. He paid the application fee late, as soon as he received the money, on 24 March 2021. The Tribunal notes that his bank account statements show that as at 16 March 2021 he had a few hundred dollars in his account, and on 24 March 2021 over $2000 was deposited into his account and on the same day he paid the application fee to the Department.

   The delegate’s refusal of the application

6. The delegate refused to grant the visa on the basis that the applicant did not meet criterion 3004. The delegate stated that the applicant last held a substantive Student (Subclass 500) visa which ceased on 16 March 2021. The applicant lodged this application for a Visitor (Tourist) (Subclass 600) visa via Form 1419 on 12 April 2021. The delegate was not satisfied there were factors beyond the applicant’s control which prevented him from lodging the current Visitor (Tourist) (Subclass 600) visa application while holding a substantive visa or that there are compelling reasons for the grant of the visa. Therefore, the delegate was not satisfied the applicant satisfies cl 600.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

   The Tribunal

7. The Tribunal was provided with a copy of the delegate’s decision record.

8. The applicant appeared before the Tribunal on 12 May 2022 to give evidence and present arguments via telephone. His agent also attended and made submissions.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION

10. 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.

11. 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.

12. 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).

13. As noted above, the delegate found that the applicant did not satisfy the requirements of criterion 3004.

14. 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.

15. The issue in this case is whether the applicant meets the requirements of criterion 3004.

    Does the applicant meet the requirements of cl 600.223?

16. The evidence indicates and the applicant stated that he was in Australia at the time of the application for the visitor visa on 12 April 2021, and that his previous visa was a student visa that ceased on 16 March 2021. The Tribunal accepts this.

17. Accordingly, the Tribunal finds the applicant did not have a substantive visa at the time of his application and the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker stream.

18. The applicant must meet the requirements of criteria 3001 and 3004.

    Does the applicant meet criterion 3001?

19. To satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The “relevant day” is defined in criterion 3001(2), that is, 28 days from the date that the applicant last held a substantive visa.

20. The visa application was lodged on 12 April 2021 and the last day the applicant held a substantive visa was 16 March 2021. Therefore, his application was lodged within 28 days of the relevant day and he meets criterion 3001.

    Does the applicant meet criterion 3004?

21. The issue is whether the applicant satisfies criterion 3004, which contains a number of requirements, as discussed below.

22. Criterion 3004 of Schedule 3 to the Regulations requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant.

23. In addition, the Minister must be satisfied: that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa, or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

    Was the applicant not the holder of a substantive visa when he applied for a visitor visa because of factors beyond his control?

24. The applicant gave more information about his relationship with his previous agent, his efforts to comply with the immigration laws, and his circumstances generally, at hearing.

25. The applicant stated that he had relied upon the advice of his previous agent, paying money to that agent, but had been misled by her on more than one occasion. The first related to 2020:

    ·     The applicant stated that he had successfully completed his Bachelor’s degree in 2019 and had travelled to see his family in China to celebrate Chinese New Year (early 2020). His student visa was due to expire on 15 March 2020 and he was fully aware of this; he had lost his laptop in China and had to come back in Australia to lodge his further student visa application to enable further studies in his chosen field.

    ·     However, as a result of the unprecedented effects of the COVID‑19 pandemic leading to border closures, he could not travel directly from China to Australia so he purchased another ticket and travelled to Thailand where he had to isolate before being allowed to travel to Australia. He was only able to travel to Australia on 14 March 2020 (this is confirmed by Departmental movement records).

    ·     The applicant said that he gave everything to his agent to lodge on the day he got back, but that the agent failed to lodge on time and only lodged the student visa application on 16 March 2020. The applicant maintained that he was unaware of this and that he continued his studies and waited for the grant of his visa, which occurred on 2 June 2020 (visa grant evidence provided by the applicant). Departmental movement records indicate that he was granted a Bridging visa C on 17 March 2020, supporting his argument that his student visa application was lodged late (on or before 17 March 2020).

26. Concerning the lodgement of the current visa application, the applicant said that he spoke to his agent in advance about his financial difficulties and his agent told him that there is a 28-day grace period for lodgement of the visa application after the expiry of his student visa. The applicant relied upon this advice, and for this reason he did not make all efforts to obtain the money to lodge his visitor visa application by 16 March 2021.

27. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. The court, in upholding the Tribunal’s decision, reiterated that the test for criterion 3004(c) is a subjective/objective test. First, there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

28. The Tribunal has carefully considered the circumstances in this case in light of the caselaw. The Tribunal accepts that the applicant was resourceful, dedicated and committed to continuing his studies in Australia. The Tribunal accepts that the applicant’s Graduate Diploma in Design course started in early 2020, but that he applied to transfer to a Graduate Diploma in Architectural Science which he commenced in August 2020, and successfully completed, thereafter enrolling in a Master’s degree. The applicant provided the Tribunal with evidence of his studies at the University of Sydney, and that he has achieved a majority of pass marks, also credit and distinction marks (with 2 fails) in his Graduate Diploma of Design, Graduate Diploma of Architectural Science and his Master’s degree in Architectural Science (which he commenced on 9 August 2021 and is due to finish on 21 July 2022).

29. The Tribunal asked the applicant if he had lodged a complaint against his previous agent with the relevant body and he said he had been concentrating on this visa and his studies, and he had not thought to do so. The Tribunal was concerned that the lack of complaint against the previous agent weighed against his claims that he relied upon that agent to lodge his visa applications for him, and that the agent failed to do so on time in 2020, and gave him wrong advice about the grace period in 2021. However, the Tribunal considers that the applicant has been consistent in his claims, and that he did all he could to arrive back in Sydney on time in March 2020 to lodge his student visa application, and that he relied upon his agent who told him that this had been done in time, which was not the case. The Tribunal accepts that the applicant was not aware that that visa application had been lodged late until the current late lodgement in 2021. The Tribunal also accepts that he had minimal funds in his bank account at the time his visa was about the expire. It considers that if the applicant had not been informed by the agent that he would have a 28‑day grace period after the expiry of his visa, he would have made all possible efforts to obtain the money required for the visitor visa application (less than $2,000) before his visa expired and he would have lodged his visitor visa application before the expiry of his student visa. In this regard, it notes the significant cost to study his Graduate Diploma in Design ($36,000 according to the COE he produced), which was the course he was at the time enrolled in, and it is difficult to understand why he would have forfeited the right to finish his Diploma simply by late payment of the visa application fee if he had not been incorrectly advised of a grace period by his previous agent. The Tribunal accepts that the applicant was actively misled by his agent on 2 occasions, and on the second occasion he did not make his own enquiries as to the immigration rules because he had no reason to doubt the agent whom he had paid, and who had previously assisted him in obtaining a student visa in June 2020.

30. Having regard to the case law guidance above, and the facts in this particular case, the Tribunal accepts that the reason the applicant was not the holder of a substantive visa at the time of lodgement of the current visitor visa application was because of factors beyond his control.

31. For the reasons set out above, the Tribunal finds that the applicant meets the requirements of criterion 3004(c).

    Other requirements of criterion 3004

32. As the Tribunal finds that the applicant meets the requirements of criterion 3004(c), it is necessary to consider whether the applicant meets the other requirements set out in that clause.

    Compelling reasons for granting the visa

33. Criterion 3004(d) requires that there be compelling reasons for granting the visa.

34. The Tribunal notes that cl 600.221 of Schedule 2 to the Regulations provides that the requirement to be granted a tourist visa is that:

    The applicant intends to visit Australia, or remain in Australia:

    (a) to visit an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or

    (b) for any other purpose that is not related to business or medical treatment. (emphasis added)

35. The Tribunal accepts that at the time he lodged the visitor visa application the applicant sought to finish his graduate diploma course which only had a few months left. The passage of time and the grant of bridging visas by the Department allowing the applicant to continue his studies means that he has since enrolled in his Master’s degree; the evidence before the Tribunal is that he is committed to achieving his Master’s degree, paying a tuition fee of over $24,000, and that this course is now due to finish in a few months’ time.

36. The applicant said that he been studying in Australia since his arrival in July 2015; he would like to be able to graduate (which has been prevented due to the COVID-19 pandemic) and then travel around Australia. Further, if he is granted a visitor visa he considers that it will be easier for him to return to Australia; if it is not granted he has significant concerns that he will not be able to apply for a visa (related to his skills, or work) in the next 3 years. The applicant is concerned for his immigration history, and an adverse immigration history is, rightfully, regarded adversely, when making further applications.

37. The Tribunal accepts that there are compelling reasons to grant the visa.

38. The Tribunal finds that the applicant meets the requirement of criterion 3004(d).

    Compliance with conditions and intention to comply

39. The applicant indicated that as far as he is aware, he has complied substantially with the conditions of his past visas and he said he intends to comply with the conditions of a visitor visa. The Tribunal has taken into account the evidence above and is satisfied that the applicant has substantially complied with past conditions and that he intends to comply with the conditions imposed by a visitor visa.

1. The Tribunal finds that the applicant meets the requirements of criteria 3004(e) and (g).

   Would the applicant have been entitled to be granted the class of visa applied for if the applicant had applied for the visa on the day when the applicant last held a substantive visa?

2. The relevant day is 16 March 2021. As noted above, he was at that time studying his Graduate Diploma and only had a few months left. Having regard to the visa purpose of cl 600.221(b), it seems likely that the applicant would have been eligible for the grant of a tourist visa if he had applied on the day when he last held a substantive visa.

3. The Tribunal finds that the applicant meets the requirements of criterion 3004(f).

4. The Tribunal notes that Schedule 3 criterion 3004(h) does not apply as it refers to circumstances where the last visa held by the applicant was a transitional (temporary) visa.

   Conclusion

5. For the above reasons, the Tribunal is satisfied that the applicant satisfies Schedule 3 criteria 3001 and 3004(a), (c), (d), (e), (f) and (g), and that criteria 3004(b) and (h) do not apply.

6. 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

7. 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 Cody
   Member