Ma (Migration)

[2022] AATA 5156

Ma (Migration) [2022] AATA 5156 (2 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Chunlan Ma

CASE NUMBER:  2202769

HOME AFFAIRS REFERENCE(S):          BCC2021/710430

MEMBER:Catherine Carney-Orsborn

DATE:2 December 2022

PLACE OF DECISION:  Sydney

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

Statement made on 02 December 2022 at 2:01pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Schedule 3 criteria – not the holder of a substantive visa – factors beyond applicant’s control – medical condition – hypertension – applicant departed Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.223, 600.411, 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 (the Department) on 24 February 2022 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 8 December 2021. 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 visa applicant did not meet cl 600.223 because the applicant did not apply for the visa whilst the holder of a substantive visa and there were no factors beyond her control that prevented her from applying for a visitor visa extension while the holder of a substantive visa.

4. The applicant did not appear before the Tribunal on 29 November 2022 to give evidence and present arguments.  The applicant’s daughter appeared before the Tribunal and informed the Tribunal that the applicant had departed Australia.

5. The Tribunal took submissions and evidence from the applicant’s daughter on behalf of the applicant.  The hearing was conducted with the assistance of a Mandarin and English interpreter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).  Further, relevantly, cl.600.411 requires that where the applicant applied for his visa while in Australia the visa can only be granted if he is in Australia.

8. In the present case, the applicant held a substantive FA 600 Visitor visa which ceased on 1 October 2021. The applicant lodged an application for a further FA 600 Visitor visa on 8 December 2021. The applicant did not hold a substantive visa at the time of application.

9. The applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The first issue in this case is whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

   Does the applicant satisfy the relevant Schedule 3 criteria?

10. The relevant criterion is 3004.

    Criterion 3004

11. Criterion 3004 applies to an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not subsequently been granted a substantive visa.

12. It requires the Tribunal to 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 entry permits, substantive visas and any subsequent bridging visa held by the applicant.

13. In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it 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 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 further entry permit, while the holder remained in Australia.

14. The Tribunal has the Department file and Tribunal file before it.

    Background facts

15. It is not in dispute that the last substantive visa held by the applicant ceased on 1 October 2021 and that she applied for a further visa after that visa had ceased.

16. The applicant first arrived in Australia on 20 October 2019 holding a Subclass 600 (Visitor) visa. On 18 December 2020, the Department granted a further Subclass 600 (Visitor) to the applicant during the Covid-19 pandemic with an expiration date of 1 October 2021.

17. The applicant travelled to and arrived in Australia with her husband (case no 2201767 with the Tribunal). The applicant and applicant’s husband lodged separate applications with the Department for the grant of a Subclass 600 (Visitor) visa. The applicant and applicant’s husband applied for review of refusal to grant a Subclass 600 (Visitor) visa with the Tribunal separately. The facts, arguments and evidence are the same for each case, therefore, the Tribunal heard both cases together.

18. On 8 December 2021, the applicant applied for a further Subclass 600 (Visitor) with the Department. On 13 February 2022, the Department contacted the applicant and invited her to comment on compelling reasons for having applied for the visa after the expiration of it.

19. On 22 February 2022, the applicant responded to the invitation to comment. In written submissions supplied by the applicant’s daughter, on behalf of the applicant, to the Department, it was stated that the applicant arrived in Australia on 19 October 2019 as the holder of a Subclass 600 (Visitor) visa. The applicant while in Australia endured the circumstances of having her original return flight home delayed by the airline on various occasions and border closures both due to the Covid-19 pandemic in 2020. Screenshots of phone messages listing dates and flight codes in the Mandarin language were included in the response to invitation to comment. It was also stated that the applicant applied for a further visitor visa onshore in 2020 which was granted by the Department. The granted visa had an expiration date of 1 October 2021. It was further submitted that the applicant’s husband suffered from medical conditions between September and October 2021 which, it is claimed, delayed the applicant’s application for a further substantive visa, being a further Subclass 600 (Visitor) visa while onshore.

20. The applicant’s daughter stated in the written submissions to the Department that on 17 October 2021 she could only apply online for a Bridging visa for the applicant. She then put in a paper application with the Department for a renewal of the applicant’s visitor visa. The applicant could no longer apply for the renewal of her visa online because it had already expired, and the only available option online was to apply for a Bridging visa.

21. The applicant’s daughter submitted that the first paper application dated 25 October 2021 for renewal of Subclass 600 (Visitor) visa for the applicant got lost. Copies of payment of postage fees with Australia Post were included in the written submissions. A letter from the Department dated 17 February 2022 to the applicant confirms that the first paper application was misplaced by the Department.

22. The applicant’s daughter claimed that the reason for the delay in applying for a visa renewal, the substantive visa, before 1 October 2021 was the applicant’s husband’s medical condition which impacted on the ability to apply for a renewal online. The applicant’s daughter provided a copy of a letter from Dr Lihua Ruan to the Department dated 22 February 2022 confirming the applicant’s husband’s hypertension and dizziness between September and October 2021.

23. Departmental records indicate that the applicant has held Subclass 600 (Visitor) visas since 2014.

24. On her application for renewal of a Subclass 600 (Visitor) visa, the applicant stated that she wished to extend her Subclass 600 (Visitor) visa to 1 October 2026. The main reason for staying in Australia was to help her daughter and son-in-law to look after her granddaughter, given that both of them were working full time. The applicant considered less than ideal for a less than 2-year-old to be exposed to the risk of contracting the highly transmissible Coronavirus if her daughter and son-in-law were to put her granddaughter in any family or childcare facility.

25. Department records indicate the applicant departed Australia on 12 June 2022 and does not hold a visa allowing her to return to Australia.

    The hearing

26. The applicant’s daughter appeared before the Tribunal and provided evidence on behalf of the applicant.  The applicant’s daughter explained that both her parents had left Australia.  The Tribunal explained that this would mean the visa cannot be granted due to cl.600.411.  She indicated she understood this.

27. The applicant’s daughter stated that her father returned to China for health reasons.  She stated that her mother (the applicant) went with him.  The applicant’s daughter asked if there are any considerations that can be given due to their age.  The Tribunal stated that it had no discretion under cl.600.411.

28. The Tribunal discussed that the medical certificate provided to the Tribunal indicated that the applicant’s husband was not examined by a doctor for his hypertension.  She confirmed that this was correct.  She stated he had a teleconference consultation.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

30. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The relevant criteria in this case is whether the applicant satisfies Schedule 3 criteria  3004.

31. Does the applicant satisfy the relevant Schedule 3 criteria?

    Criterion 3004

32. Criterion 3004 applies to an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not subsequently been granted a substantive visa.

33. It requires the Tribunal to 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 entry permits, substantive visas and any subsequent bridging visa held by the applicant.

34. In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it 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 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 further entry permit, while the holder remained in Australia.

35. The Tribunal has the Department file and Tribunal file before it.  It has the submissions provided to the Tribunal and Department from the applicant.  At hearing the applicant’s daughter confirmed those written submissions.

36. It is not in dispute that the applicant’s last substantive visa ceased on 1 October 2021.  The application for a subsequent visitor visa was lodged onshore on 25 October 2021.  The applicant claimed that this paper application was misplaced by the Department.  The Department accepted this and allowed that the Schedule 3004 criteria were to be considered.

37. At the time of application, the applicant was not the holder of a substantive visa.

38. The applicant’s written submissions are that she could not lodge an application within the required time frame as her husband was suffering from hypertension.  A medical certificate was provided.  The doctor indicated that they did not examine the applicant however accepted he had hypertension.  Without further medical evidence the Tribunal cannot be satisfied that having hypertension, which can generally be treated by medication is a condition that would stop the applicant from lodging a further visitor visa within the required time especially as it was her husband not herself who was affected by health concerns.  The applicant had earlier lodged an application for a further visitor visa during the outbreak of the pandemic which had been granted.  By October 2021 procedures had been put in place and the applicant and her family would have been aware that they needed to contact the Department.  Unfortunately, the application was lodged after the substantive visa expired. 

39. The Tribunal accepts that at the time of the outbreak there were compelling circumstances for the grant due to issues relating to the care of a toddler grandchild, country closures and no flights being available but at today’s date this is no longer the case as evidenced by the applicant returning to China earlier in the year.

40. After considering all the above, the Tribunal is not satisfied that the applicant was dealing with factors beyond her control which resulted in the application being delayed.

41. There is nothing to indicate that the applicant has not complied with the conditions of previous visas for entry permits.

42. At the time of application there may have been compelling reasons for granting the visa however at today’s date the Tribunal is not aware of any circumstances which would be compelling reasons for granting the visa. Therefore, the applicant does not meet the criteria of 3004.

    Conclusion 

43. For the above reasons, the applicant does not satisfy criterion 3004.  The applicant does not satisfy Schedule 3 criterion 3004 for the purposes of cl 600.223.

44. Information before the Tribunal and held on the Department databases indicates that the applicant departed Australia on 12 June 2022.

45. Cl.600.411 requires that where the applicant applied for her visa while in Australia the visa can only be granted if she is in Australia.

46. Department records indicate that the applicant has left Australia and does not have a visa to re-enter Australia. 

47. For the above reasons the Tribunal finds that the applicant cannot satisfy cl.600.411.

48. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 (Visitor) visa, the decision under review must be affirmed.

    DECISION

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

    Catherine Carney-Orsborn
    Member