Nguyen (Migration)

[2021] AATA 3861

Nguyen  (Migration) [2021] AATA 3861 (6 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hong Nguyen

CASE NUMBER:  2102987

HOME AFFAIRS REFERENCE(S):          BCC2020/2865690

MEMBER:Denise Connolly

DATE:6 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2021 at 12:19pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – previous visitor visa expired – factor beyond applicant’s control – attempt to lodge online application the day before expiry – using BPAY rather than credit card resulted in lodgement date after visa expired, therefore application invalid – valid application made later – tourism and family activities, and COVID-19 in home country – no compelling reason to grant visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criterion 3004(c), (d)

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 18 February 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 21 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 meet cl.600.223(2) because the delegate found the applicant did not satisfy the Schedule 3 requirements set out criterion 3004.

4. The applicant appeared before the Tribunal on 28 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her niece, Ms Thi Thanh Xuan Nguyen, who also attended the hearing and gave oral evidence on the applicant’s behalf.  

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

   BACKGROUND TO THE APPLICATION

6. The applicant is a 70-year-old citizen of Vietnam. She last entered Australia on 8 March 2020 as the holder of a subclass 600 Visitor visa. While onshore, she was granted a further subclass 600 Visitor visa on 29 August 2020.  That visa ceased on 6 December 2020 and she remained in Australia unlawfully until making this visa application.

7. The applicant’s niece has made submissions that she attempted to lodge, online, another visa application on 5 December 2020, using the ImmiAccount. She also paid the application fee via BPAY and was issued with an invoice. She stated she checked her ImmiAccount in the next few days and saw that a status of ‘awaiting payment’ was recorded. She contacted the Department on 7 December who advised her to submit a request for technical support. She received a response from the Department’s Help Desk advising that the application was affected by a ‘technical issue’ which is now resolved. She stated that the lodgement date on her ImmiAccount showed that the application was submitted on 9 December 2020, rather than 5 December 2020.

8. On 21 December 2020 she lodged a valid application for a subclass 600 Visitor (Tourist) visa, the subject of this review. On 18 February 2021 a delegate of the Minister refused her application for a Visitor (Tourist) visa having found she did not satisfy Schedule 3 criterion 3004, and therefore did not meet the requirements of cl.600.223. 

   EVIDENCE TO THE DEPARTMENT AND TRIBUNAL

9. On her visa application form, the applicant indicated that she wishes to extend her stay in Australia due to the COVID pandemic, and to visit family and support the Australian tourism industry. The applicant indicated that she has two sisters and two nieces in Australia. She also listed planned tourism and family activities including birthday celebrations for her nieces and granddaughter and visits to see her grandson.

10. The applicant’s niece stated her aunt is a responsible visitor who has never overstayed her visas. Her aunt intended to go home to spend Christmas with her family, however, she remained in Australia during the COVID-19 pandemic. The applicant is financially independent and receives rental income from land and factory space. The following documents were attached to the applicant’s visa application form:

    ·Copy of a BPAY payment invoice dated 5 December 2020, requesting payment by 8 December 2020.

    ·Copy of a receipt indicating a BPAY payment was lodged on 5 December 2020.

    ·Copy of an enquiry submitted with the Department on 8 December 2020, and a response from the  HelpDesk received on 9 December 2020 stating that the application was affected by a technical issue that has now been resolved.

    ·Copy of an application summary, stating that the online application for the visitor visa was submitted on 9 December 2020 (when the payment was processed).

    ·Copies of Department visa grant notices for the applicant’s previous Subclass 600 Visitor visas dated 19 June 2019 and 29 August 2020.

    ·Singapore Airlines itinerary dated 29 November 2019.

    ·Certified copy of the applicant’s passport.

    ·Untranslated documents claimed to be evidence of the applicant’s access to funds, and assets including title deeds, and evidence of her rental agreement and factory rental agreement.

    ·A letter from the applicant’s sister dated 5 December 2020 requesting her sister’s Visitor visa to be extended due to the risk of contracting COVID-19. The letter also outlines plans for the applicant’s stay in Australia, including tourism and family activities, such as birthday celebrations for her nieces and a visit to Wollongong to see her newborn grandson. 

11. On 8 February 2021 the Department wrote to the applicant stating the applicant’s last substantive visa ceased on 6 December 2020 and she was an unlawful non-citizen and did not hold a substantive visa at the time of her visa lodgement. The letter invited the applicant to provide information demonstrating she satisfies criteria 3003 and 3004, that is, there were factors beyond her control which prevented her from lodging an application whilst holding a substantive visa and there are compelling reasons for granting the visa.

12. On 12 February 2021, the applicant’s niece responded to the Department’s letter, stating there were factors beyond her control that prevented her from lodging the initial application on 5 December. She stated that ‘the Department’s IT was out of order’ and that she was not aware of this until she received a response from the Helpdesk on 7 December. She submitted that it would be unreasonable for the Department to refuse the visa due to the IT issues and the fact that her aunt is a law-abiding visitor with no adverse record.

13. The applicant has provided to the Tribunal a copy of the delegate’s decision record. According to the Department’s decision record, the applicant had not provided evidence that an application was submitted on 5 December, as the enquiry to the Department’s E-Service Support Helpdesk was dated 8 December 2020, two days after the expiry of the visa on 6 December. Therefore, the delegate was not satisfied that there were factors beyond the applicant’s control which prevented her from lodging the current visa application whilst holding a substantive visa or that there are compelling reasons for the grant of the visa.

14. At the hearing the Tribunal discussed the requirements of the law. The applicant’s oral evidence has been taken into account and discussed in the Tribunal’s consideration of the claims and evidence.

    RELEVANT LAW

15. The issue in the present case whether the applicant satisfies Schedule 3 criterion 3004. It requires that the Minister is satisfied the applicant is not the holder of a substantive visa because of factors beyond 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. In addition, the Minister must be satisfied the applicant would have been able to be granted the visa if she had applied on the day she last held a substantive or criminal justice visa; or would have satisfied the criteria when she last entered Australia unlawfully; that she 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Criterion 3004(a) requires that the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994. The Tribunal is satisfied the applicant ceased to hold a substantive visa on 6 December 2020, and therefore satisfies (a). Schedule 3 criterion 3004(b) is an alternative to (a) and therefore does not apply.

17. Criterion 3004(c) requires that the applicant is not the holder of a substantive visa because of factors beyond her control.   It was confirmed at the hearing that the applicant’s niece attempted to make an online visa application on 5 December 2020 but used BPAY rather than a credit card. This meant the payment was not made immediately as BPAY typically takes up to three days. As discussed with the applicant at the hearing this appears to be consistent with the evidence provided by the applicant that the BPAY payment invoice dated 5 December 2020, requested payment by 8 December 2020.  It appears therefore that the visa application was not paid for until after the applicant’s last substantive visa ceased on 6 December 2020. As it is not possible to make an online visa application after an applicant’s visa ceases the visa application was considered to be invalid.

18. The Tribunal asked why the applicant left making the visa application until the day before her last held visitor visa expired. The applicant believed the visa application was made at the right time. Her niece left it until the last day because she was very busy with her work as a mental health social worker.  She had gathered the relevant documents and was ready to make the visa application the day before the substantive visa expired but it was a mistake to use BPAY rather than a credit card. Had she used a credit card, as the applicant had for her previous visitor visa application made in June 2020, the visa application would have been paid for in time and considered to be valid. The applicant’s niece was very stressed and it did not occur to her that BPAY would take so long to process the payment.

19. The Tribunal accepts the applicant’s evidence regarding the circumstances leading to the applicant not holding a substantive visa at the time of the visa application. It accepts that she was relying on her niece to make the visa application and her niece did not factor in that BPAY can take up to three days to process. It accepts this was an innocent mistake made on her behalf and that her niece was stressed by her work as a mental health social worker, under more pressure because of the pandemic. It has sympathy for the applicant and her niece however it is not satisfied this was a factor beyond her control. It is of the view a visa holder should do everything possible to ensure they continue to hold a valid visa and it has concerns that leaving the visa application until the last day was not prudent. The Tribunal is not satisfied the applicant meets criterion 3004(c). However even if the Tribunal is wrong in its finding on criterion 3004(c) for the following reasons it is not satisfied the applicant meets criterion 3004(d).

20. The Tribunal asked the applicant and her niece, who gave evidence on her behalf, why it should be satisfied that there are compelling reasons for granting the visa. The Tribunal was told the applicant wants to stay in Australia longer until the COVID situation has settled in Vietnam. She stated she is grateful to the Australian government for the benefits she has enjoyed here as she has been vaccinated. The Tribunal notes the COVID pandemic is affecting every nation globally, including Australia and Vietnam. There is no reliable evidence before the Tribunal as to when the pandemic will ease such that there is no risk of contracting the virus. It is not satisfied the applicant is at a heightened risk of contracting the virus in Vietnam as she is now vaccinated. Given the applicant has been vaccinated and the pandemic impacts both Australia and Vietnam it is not satisfied this is a compelling reason for granting the visa.

21. The applicant confirmed that since she last arrived in Australia in March 2020 she has visited her sisters, nieces and nephews since arriving. She has a lot of relatives in Australia and a niece in WA recently had a baby. She is supported financially in Australia by her family. She wants to stay a while longer to spend more time with family, to whom she is very close. The family has events planned for the next two months which she would like to stay for. While she is happy to ultimately return to Vietnam she wants to spend more time here with family.

22. The Tribunal notes the applicant been spending time in Australia with family for over 18 months. It accepts she would like to stay longer to enjoy events planned over the next two months. It is often the case that families have events planned, including to celebrate the birth of a new baby. It notes the applicant has had an opportunity to see the new baby. While it accepts the applicant is very family orientated and close to her family  in Australia, the Tribunal is not satisfied this is a compelling reason to grant the visa. Accordingly the Tribunal is not satisfied the applicant meets criterion 3004(d).

23. As the Tribunal has found the applicant does not met criteria 3004(c) and 3004(d) it not necessary to consider other criterion 3004 requirements.

24. The Tribunal finds the applicant does not meet the requirements of Schedule 3 criterion 3004 and therefore the requirements of cl.600.223 are not met.  The applicant is therefore unable to meet the criteria for the grant of a Visitor (Class FA) visa in the Tourist stream.

    DECISION

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

    Denise Connolly
    Member