Nguyen (Migration)

[2023] AATA 1218

Nguyen (Migration) [2023] AATA 1218 (17 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Viet Hung Nguyen

CASE NUMBER:  2200251

HOME AFFAIRS REFERENCE(S):          BCC2021/2179513

MEMBER:Peter Papadopoulos

DATE:17 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 17 April 2023 at 9:32am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – applicant did not hold a substantive visa at the time of application – considerable efforts were made to maintain the applicant’s lawful visa status – applicant clearly misunderstood the possible consequences of withdrawing the first visitor visa application –not a factor beyond the applicant’s control – failed to satisfy criterion 3004 – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 362, 379

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3004

CASES

Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151

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

2. The applicant, a 65-year old-male citizen from Vietnam, applied for the visa on 11 November 2021.  Prior to making that visa application, the applicant last held a substantive visa on 28 October 2021.

3. At that time, 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.

4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include clause 600.223:

   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.

5. Subclause 600.223(2)(b) specifies that the applicant must meet a number of requirements including criterion 3004 in Schedule 3 to the Regulations:  

   3004

   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.

6. On 24 December 2021, the delegate refused to grant the visa. While the delegate found that the applicant satisfied the sub-criterion 3004(d) because there were compelling reasons for the grant of the visa, the delegate refused the application on the basis that the applicant did not meet sub-criterion 3004(c) because there were not factors beyond the applicant’s control which prevented him from lodging the application while holding a substantive visa.

7. On 6 January 2022, the applicant applied to the Tribunal for review of the delegate’s decision.  The applicant is represented in connection with this review application by his son Mr Viet Hoang Nguyen (the representative).

8. On 5 April 2023, the Tribunal invited the applicant to appear before the Tribunal on 20 April 2023 to give evidence and present arguments.

9. On 12 April 2023, the representative notified the Tribunal that the applicant would not be able to attend the hearing and that he and the applicant requested that a decision be made by the Tribunal based on the papers.

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

    Evidence before the Department

11. Department records indicate the applicant first arrived in Australia on 17 November 2019 as the holder of a Visitor (Class FA) visa. He departed Australia on 4 January 2020 and returned to Australia on 19 January 2020 where, at the time of the delegate’s decision, he remained. He was granted further Visitor (Class FA) visas on 14 May 2020 and 15 January 2021, the latter of which ceased on 28 October 2021.

12. The applicant applied for the visa under review on 11 November 2021.

13. On 18 November 2021, the Department wrote to the applicant requesting more information in support of his visa application. The Department informed the applicant that Departmental records indicated that his previous visa had ceased on 28 October 2021 and at time of his visa lodgement, he did not hold a substantive visa. The Department requested he respond in writing explaining whether:

    ·     there were factors outside his control preventing him from lodging an application whilst holding a substantive visa; and

    ·     there were any compelling reasons for the grant of the visa.

14. On the same day, the applicant’s son responded by way of email to the Department on the applicant’s behalf.  The email set out a brief explanation of his father’s circumstances.  The following documents were attached to that email:

    ·     a letter of explanation signed by the applicant on 18 November 2021 which relevantly stated:

    My name is Viet Hung NGUYEN, born 30 May 1957. I wrote this letter to explain why I did not hold a substantive visa at the time of my current visa lodgement.

    (1) As my previous Visitor Visa expired on 28 October 2021, I had lodged a new Visitor Visa application (subclass 600) on 26 October 2021 (TRN: EGORPINYSD), for this application I was granted a Bridging Visa A (Visa Grant number: 8269559808670).

    (2) Prior to the above Visitor Visa application, my wife and I also submitted an Age Parent Visa subclass 804 on 11 October 2021 (File Number: BCC2021/1947784, Application ID: 380645254). For this application, I was granted a Bridging Visa A (class WA, subclass 010; Visa Grant Number: 0079526624558) on 29 October 2021.

    (3) Upon the grant of the Bridging Visa A (class WA, subclass 010) for our Age Parent Visa application, I withdrew my valid Visitor Visa application (TRN: EGORPINYSD) in (1) on 3 November 2021, thinking that our Age Parent Visa application was valid.

    (4) However, having withdrawn my valid Visitor Visa application (TRN: EGORPINYSD) in (1) (at 11:32AM on 3 November 2021), I received a notification/letter that our Age Parent Visa application was invalid on 3 November 2021 at 2:48PM. Because of the invalid Age Parent Visa application, I needed to re-apply for another Visitor Visa to stay in Australia legally. However, at this date, I no longer held a substantive visa, and therefore, I had to lodge the current paper application while not holding a substantive visa.

    As you can see from the above line of events, I did apply for a new Visitor Visa (on 26 October 2021) while holding a substantive visa (expiring on 28 October 2021) but withdrew this application unknowingly, based on the thinking that our Age Parent Visa application was valid (as my wife and I were granted Bridging Visa A class WA, subclass 010). The timing of the notification of invalid Age Parent Visa application (on 3 November 2021) was out of my control and by the time I received this notification, I had withdrawn my valid Visitor Visa in (1).

    ·     a letter from the Department dated 26 October 2021 which acknowledged receipt of a visitor visa application made by the applicant (the first visitor visa application).  Included with that letter was a document stating that the applicant had been granted a Bridging A visa (BVA) on 26 October 2021 in connection with the first visitor visa application

    ·     a letter from the Department dated 29 October 2021 which acknowledged receipt of a parent visa application that was lodged on 11 October 2021, with the applicant as a secondary visa applicant and his wife as the primary visa applicant (the parent visa application).  Included with that letter was:

    o   a BVA grant notice stating that the applicant’s wife had been granted a BVA on 28 October 2021 in connection with the parent visa application

    o   a BVA grant notice for the applicant stating that he had been granted a BVA on 29 October 2021 in connection with the parent visa application

    ·     a Withdrawal of visa application form completed by the applicant with respect to the first visitor visa application and lodged at 11.32am AEDT on 3 November 2021. In that form, the reason given for withdrawing the application was:  “Granted other visa class”.

    ·     an email sent at 2.48pm AEDT on 3 November 2021 by Denise (Position Number 00001830), a delegate of the Department processing the parent visa application, to the applicant’s son (who was the applicant’s authorised recipient) attaching a letter to the applicant’s wife which relevantly contained the following statements:

    I refer to your Aged Parent (subclass 804) visa application lodged on 11 October 2021and the telephone conversation I had earlier today with your son and sponsor, Viet Hoang Nguyen.

    As discussed with Viet, one of the eligibility requirements for this visa is that at least one applicant named on the application must be old enough to receive the age pension in Australia at time the application is lodged.

    You did not meet the age requirement on the day the application was lodged.

    We applied the age requirement test to the application lodged by Viet Hung Nguyen and he did not meet the age requirement.

    I have attached a copy of Regulation 804.21 (criteria to be satisfied at time of application).

    You may wish to withdraw the application.

    ….

    Viet mentioned you lodged a request to withdraw your Visitor Visa (subclass 600) visa application. I told Viet we would contact the office processing the application and ask them not to proceed with the withdrawal.

    Unfortunately, moments later I noticed the withdrawal request had been actioned and a letter informing you that the application was withdrawn was sent.

    I have contacted the office that processed the withdrawal and will contact you as soon as possible to let you know if it is possible to reverse the withdrawal.

15. On 24 December 2021, the delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because the delegate was not satisfied that at the time of application, the applicant was not the holder of a substantive visa because of factors beyond his control.

    Evidence before the Tribunal

16. On 6 January 2022, the applicant applied to the Tribunal for review of the delegate’s decision. In a letter dated 6 January 2022, the applicant addressed the delegate’s decision in the following terms:

    I wrote this letter to apply for a merits review of the refusal of my Visitor Visa application. In the Decision Record on 24 December 2021, the case officer stated that: “Whilst I acknowledge the applicant has concerns over the Covid-19 pandemic and the care of his granddaughter, I find that there were no factors that prevented the applicant from lodging a further stay visa within the validity of their substantive visa…”

    With all respect to the above decision, I have to disagree with it. All my life, I have lived by the utmost principle of honesty and absolute abidance to legal regulations. This case is not an exception. Within the space of 30 days between 11th October and 11th November 2021, with the help of my son, I lodged all together 4 (four) visa applications, 2 of them were submitted before the expiry of my previous substantive visa, with an ultimate wish to abide to the Australian immigration law and to remain in Australia lawfully. Unfortunately, things happened beyond our control, but we wish to keep going and with this merits review application, hoping to humbly ask for your help to look again into our cases and help us remain in Australia, lawfully, in this extremely high-risk period of the Covid-19 pandemic.

    As explained in my response to the case officer on 18th November 2021, I (also my wife)  had lodged two visa applications, the first one on 11th October 20211 and the second one on 26th October 2021, before my previous substantive visa expired on 28th October 2021. The reason behind our multiple visa applications was to make sure that I (and my wife) made appropriate arrangements to remain lawfully in Australia. And in order to do so, we had spent much time, efforts and money, but we didn’t mind because we believed that these were necessary to ensure that we followed the requirements of the Australian immigration law.

    However, there was an incredibly unexpected unfolding of events related to my two above-mentioned visa applications (as well as my wife’s) afterwards, that has made everything complicated and out of our control. Amongst multiple events related to my visa applications, overwhelmed with excitement and good intention, but with limited knowledge on Australian immigration law as an ordinary person, we made an extremely wrong decision on 3rd November 2021 to withdraw my above-mentioned valid Visitor Visa application while it had already been placed under consideration and a Bridging Visa A had been granted to me (and the same with my wife’s case) as the result of that application. Recognising the mistake that we had made, within just less than 48 hours, we contacted back and forth multiple times with our case officer of each visa application and received very kind support and advice from them to try to fix the situation, including reversing the withdrawal of my above-mentioned Visitor Visa application and submitting two more new Visitor Visa applications. And yet, we are still trying at this very moment when I am writing this letter to you, in a hope to continue fixing the situation and to abide to the Australian immigration law.

    I am very sorry to have made the mistake of withdrawing my first Visitor Visa application, but I have honestly done everything I could, to my best knowledge and highest intention, to respect the Australian immigration law.

    With my deepest gratitude, I sincerely request your kind reconsideration of my most recent Visitor Visa application so I, and my wife, can remain in Australia a little longer, to avoid having to travel long distance and being exposed to higher risks of contracting Covid 19, while being able to help my son and daughter in law taking care of their autistic daughter during this challenging time.

    I am grateful for your time and understanding. Please don’t hesitate to get back to me if you need any further clarification or documents.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The applicant is a Vietnamese citizen who has primarily relied upon his son to assist him with his Australian visa applications that were lodged in October and November 2021 and the present review application.

18. On the available material, the Tribunal understands that the relevant circumstances of the applicant’s case, which gave rise to them lodging the visa application under review while not holding a substantive visa, may be summarised as follows:

    ·     The applicant was aware that his last substantive visa was due to expire on 28 October 2021.  Prior to that date, he lodged two valid visa applications onshore, namely:

    o   the parent visa application on 11 October 2021

    o   the first visitor visa application on 26 October 2021

    ·     A BVA was granted to the applicant on 26 October 2021 in connection with the first visitor visa application

    ·     Another BVA was granted to the applicant on 29 October 2021 in connection with the parent visa application.  The applicant was notified of this matter under cover of a letter from the Department dated 29 October 2021 which clearly stated that the parent visa application was valid.

    ·     Having been granted a BVA in connection with the parent visa application, the applicant withdrew the first visitor visa application at 11.32am AEDT on 3 November 2021.  He claims to have withdrawn this application because he thought the parent visa application was “valid”.

    · The applicant then received a letter at 2.48pm AEDT on 3 November 2021 from the delegate processing the parent visa application advising that a Schedule 2 criterion could not be met and offering an opportunity to withdraw that parent visa application. The applicant mistakenly understood this to mean that the parent visa application was “invalid” and thought that at that date he no longer held a substantive visa and therefore needed to lodge another visa application in order to remain lawfully onshore.

    ·     After efforts to lodge a further valid onshore application for a substantive visa, the applicant lodged a second visitor visa application on 11 November 2021.

    Does the applicant meet criterion 3004?

19. As set out above, criterion 3004 includes a number of requirements. Sub-criterion 3004(c) requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control.

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

20. In considering whether there are reasons which constitute factors beyond the applicant's control, the Tribunal has had regard to the decision of Smith FM in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, which involved a Subclass 457 visa and criterion 3004. While the application in that case was dismissed by the Court, the judgement provides guidance on the interpretation of the test of factors beyond the control of a person.

21. Smith FM, referring to the judgement of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17] that two useful general points emerge from that case:

    The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense "subjective", rather than being directed at deciding what would have been beyond the control of an abstract or "reasonable" person.  A second point is that what is "beyond control" should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.  A capacity to control and avoid the happening of the event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.

1. Smith FM goes on to refer to further discussion by Mansfield J making the point at [18] that:

   it is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.

2. The applicant refused the Tribunal’s invitation to hearing.  Accordingly, the Tribunal was unable to explore various relevant matters with the applicant including but not limited to:

   ·     the degree of the applicant’s involvement in and understanding of his migration affairs

   ·     the degree of his vulnerability and reliance upon his son in discharging those affairs

   ·     whether he, or his son, had received incorrect advice or misleading information from a Departmental officer in connection with those affairs

   ·     whether he, or his son, had received incorrect advice from an Australian legal practitioner or registered migration agent in connection with those affairs

   ·     the reason why he departed Australia on 17 March 2022 and has not returned since

   ·     the reason why he chose to wait until 25 March 2022 to withdraw the parent visa application while he was offshore.

3. In the absence of a hearing, the Tribunal is left with its consideration of the available material.   The Tribunal has considered all the evidence of the applicant and his son have provided about their circumstances. The Tribunal acknowledges that the applicant’s contention that, as an ordinary person, he had limited knowledge of Australian immigration law and finds that he largely relied upon his son to assist with the preparation and lodgment of his Australian visa applications in October and November 2021, as well as to liaise with officers of the Department in relation to those matters.

4. Having considered the available material, particularly the submissions presented to the Department and the Tribunal, the Tribunal accepts that considerable efforts were made by the applicant and his son to ensure that the applicant held a visa beyond 28 October 2021 in order to remain lawfully in Australia beyond that date.  There is no evidence to suggest that the applicant’s son was not acting in the applicant’s best interests.  On the contrary, the applicant’s son appears to have made considerable effort to assist the applicant.  Regrettably, despite such assistance, the applicant did not lodge the present visa application under review before 28 October 2021.  Instead, a series of events transpired after the withdrawal of her first visitor visa application on 3 November 2021 which gave rise to a situation where the applicant lodged the present visa application under review some eight days later.  The Tribunal has considered those events, in the context of the applicant’s circumstances, as part of its assessment as to whether sub-criterion 3004(c) has been met.  The Tribunal’s assessment follows.

5. The Tribunal acknowledges that the first visitor visa application had been lodged before 28 October 2021. Nevertheless, it was withdrawn on 3 November 2021 and there is no evidence before the Tribunal to indicate that it was withdrawn without the applicant’s authorisation or as a result of the applicant having received incorrect advice or misleading information from the Department.  Instead, the evidence clearly indicates that the first visitor visa application was withdrawn because the applicant thought he had lodged a “valid” parent visa application.  Based upon the available material and the sequence of events which transpired, the Tribunal has understood this to mean that because the applicant had been granted a BVA in connection with his valid parent visa application, he therefore no longer required the BVA granted in connection with the first visitor visa application in order to lawfully remain onshore.  On that basis, the first visitor visa application was withdrawn. This is clear from the reason given in the withdrawal form - “Granted other visa class”.  This withdrawal request was lodged on 3 November 2021, apparently without consideration of the difficulties that might arise if a further onshore visa application involving a need to meet clause 3004(c) were to be made by the applicant after that date. 

6. Furthermore, on the available material, the Tribunal also observes that the applicant and his son have misconstrued the terms of the Department’s correspondence in relation to the parent visa application.  That correspondence, which was received after the first visitor visa application had been withdrawn, did not state that the parent visa application was invalid.  Rather, it stated that the applicant and his wife could not meet the criteria for the grant of the parent visa and thereby invited them to withdraw that application in the event they wished to avail themselves of the possibility of a refund of the parent visa application charge.  In any event, while the withdrawal of the first visitor visa application was unfortunate, based upon the available material, the Tribunal finds that it was not an action taken either:

   ·     due to the provision of incorrect advice or misleading information by a Departmental officer; or

   ·     without the applicant’s knowledge or consent.

7. The Tribunal considers that in straightforward terms, the applicant and his son knew the correct expiry date of the applicant’s last substantive visa on 28 October 2021 and the events that transpired after that date do not, individually or cumulatively, amount to factors beyond the applicant’s control in this present case. Those events indicate that considerable efforts were made to maintain the applicant’s lawful visa status after 28 October 2021 but the applicant and his son clearly misunderstood the possible consequences of withdrawing the first visitor visa application.  Clearly, the applicant would have benefitted from the advice of an Australian legal practitioner or registered migration agent in relation to those consequences before action was taken to withdraw the first visitor visa application on 3 November 2021.  Had such professional advice been taken, the applicant would have been made aware of the difficulty in meeting sub-criterion 3004(c) in connection with a future visa application, such as the application under review, where he did not hold a substantive visa at the time of application.

8. Taking into account the circumstances of the case, it was not beyond the control of the applicant, or the applicant’s son upon whom the applicant had relied, to have taken steps to obtain such professional advice before withdrawing the first visitor visa application on 3 November 2021.  Any misunderstanding of the applicant’s situation and failure to obtain professional advice at that juncture, while regrettable, is not a factor beyond the applicant’s control in the context of the present case.  Whilst the circumstances are unfortunate, and the Tribunal has considerable sympathy for the applicant and his family, the decision to withdraw the first visitor visa application, was a decision made by the applicant, or the applicant’s son as his agent in this context, and was therefore not outside of the applicant’s control.  It was that decision which ultimately gave rise to the applicant considering it necessary to make the visa application under review.

9. As the applicant chose not to attend a Tribunal hearing, the Tribunal was unable to discuss with him, or his son, whether there were any other factors outside his control which, in a practical or realistic sense, prevented him from applying for the visa under review whilst he was the holder of a substantive visa.

10. For the reasons explained above, the Tribunal does not accept that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control.

11. Accordingly, the Tribunal finds that the applicant does not meet the requirement in sub-criterion 3004(c). 

    Conclusion

12. As the applicant does not satisfy sub-criterion 3004(c), the applicant is unable to satisfy criterion 3004 in its entirety. As the applicant does not satisfy criterion 3004, the applicant is unable to meet the requirements of subclause 600.223(2)(b).  Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of clause 600.223.

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

    DECISION

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

    Peter Papadopoulos
    Member