Lin (Migration)

[2021] AATA 2259

Lin (Migration) [2021] AATA 2259 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Louis Lin

CASE NUMBER:  2102336

HOME AFFAIRS REFERENCE(S):          BCC2020/2787099

MEMBER:Nora Lamont

DATE:4 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 04 June 2021 at 2:37pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of visa application – sponsor employer withdrew nomination – impact of COVID19 border closures – awaiting new child’s birth – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001

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 9 February 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 4 December 2020. 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 600.223 because at the time she applied for the visa he did not hold a relevant substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Migration Regulations.

4. The Tribunal held a telephone hearing with the applicant’s mother and father, and it was a combined hearing of his application, with his parents (File: 2102335 and File: 2102334). The applicant’s mother gave evidence by way of telephone on 3 June 2021. The Tribunal also received an oral submission from the applicant’s representative.

5. The applicants mother provided a letter prior to the Tribunal hearing outlining the current situation for her and her family in relation to the visa and the pandemic. The following is the letter received:

   My name is Yao LU (DOB: 05/12/1988), I am writing to you on behalf of my family to support our visitor visa application. My husband Yue LIN (DOB:06/12/1991), our son Louis LIN (DOB:21/04/2019) and I were refused the tourist visa application. My second newborn Luna LIN (DOB:31/10/2020) was granted a tourist visa expired in the end of 2021. We would like to take this opportunity to demonstrate our compelling situation and please special consider our application to grant us a tourist visa.

   OUR VISA HISTORY
   My family and I are holding a bridging visa for waiting a decision of a Regional Employer Nomination 187 visa under nomination from CMD Developments Pty Ltd. The bridging visa A was active on 18/01/2020. The 187 visa application was under processing since 23 May 2016, so we thought the decision would be made soon according to previous visa processing timeframe. Months later Australia was closing its borders to all
   non-citizens and non-residents in March 2020 following with Melbourne hard lockdown until late 2020. During the period, I was pregnant and delivered my second child Jinan LIN (Luna LIN) on 31/10/2020. CMD Developments Pty Ltd ceased operation and withdrew the nomination due to recession caused by Covid-19 pandemic, but the company did not notify me. Therefore, we were not aware of the nomination withdrawal until receiving Department letter and was advised to withdraw the 187 visa application. We then withdrew our visa application on 27/11/2020. And withdrawal was confirmed by the department on
   05/01/2021. Under the global pandemic with the global travel restriction, the departure from Australia became impossible for our family with two little kids. Our second child Jinan LIN (Luna LIN) was just 6 months. We applied her birth certificate on 09/11/2020 and her passport was posted to us on 19/01/2021. Before receiving Jinan LIN passport, we decided to apply for the tourist visa to extend our stay temporarily in Australia, to get enough
   time for my second child identity done and purchase flights home. Unfortunately, CMD Development PTY LTD ceased to operation when national economic recession during
   Covid-19 pandemic. This is beyond our control. We were patiently waiting for the visa decision of our 187
   visa application. But we have to withdraw the 187 visa application as our nominator CMD Development PTY LTD withdrew its nomination application. That is the reason that we did not lodge our 600 visa within 28 days of our substantive visa expired.

   COMPELLING REASONS NOT SUITABLE TO DEPART AUSTRALIA RECENTLY
   A certificate of negative nucleic acid and anti-body blood test result are compulsory before boarding any flights from Australia to China, which makes our return to China much harder. And the cost of flights fare is soaring following the announcement. The B.1.1.7 variant caused 4th lockdown in Melbourne, while new local transmission was found in China too. This causes lots of uncertainty in booking flight home and boarding successfully. As the requested test for boarding is restricted to within 2 days before boarding, the uncertainty
   of successful boarding is multiplying in this constant as flight cancelation become normal.
   On top of that, we are worried about the potential health risk of long our flights and the following hassle of 14 days quarantine in China upon arrival to our boy, Louis, who is under 2-years-old, and the new-born, Jinan (Luna), who are extremely vulnerable under this circumstance although the pandemic subsides at this stage. Therefore, we would like to invite you to grant us a 6-month visitor visa to allow us stay in Australia temporarily and eventually depart Australia safely. Sincerely appreciate your time and consideration.

6. At the Tribunal hearing the applicant explained what had occurred with her application and how she did not know it had been withdrawn. The process was complicated by the fact that the applicant had a new baby and small child at home. She reiterated that she would like the Visitor’s Visa until the pandemic gets better as it is not practical for them to return right now.

7. The applicant said the situation was very stressful for them and if they return to China they will be required to quarantine for a month, and it is a very stressful situation for the entire family.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this present case is whether the applicant meets the requirements of cl 600.223. This clause provides:

   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.
   Schedule 3 criteria 3001 states that:

   3001
   (1) The application is validly made within 28 days after the relevant day (within the
   meaning of subclause (2)).
   (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an
   applicant, is:
   (a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but
   has not subsequently been the holder of a substantive visa — 1 September 1994; or
   (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not
   clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the
   Act applies) and has not, at any time on or after 1 September 1994, been the holder of a
   substantive visa — the day when the applicant last became an illegal entrant; or
   (c) if the applicant:
   (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
   (ii) entered Australia unlawfully on or after 1 September 1994;
   whichever is the later of:
   (iii) the last day when the applicant held a substantive or criminal justice visa; or
   (iv) the day when the applicant last entered Australia unlawfully; or
   (d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has
   made a decision to set aside and substitute the cancellation decision or the Minister's
   decision not to revoke the cancellation — the later of:
   (i) the day when that last substantive visa ceased to be in effect; and
   (ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

10. The applicant was in Australia at the time that he applied for the visa. He did not hold a substantive visa at the time. The last substantive visa she held was a 457 Visa which ceased on 18 January 2020 and is not a visa specified in cl 600.223. The issue is therefore whether the applicant satisfies schedule 3 criteria.

11. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day, for the applicant her substantive visa ceased on 18 January 2020 and the application for the Visitor’s Visa was made on 4 December 2020.

12. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, the applicant does not meet the requirements of cl 600.223.

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

    Nora Lamont
    Member