Nguyen (Migration)

[2023] AATA 466

Nguyen (Migration) [2023] AATA 466 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Trong Nguyen

CASE NUMBER:  2103391

HOME AFFAIRS REFERENCE(S):          BCC2020/2793759

MEMBER:Rachel Da Costa

DATE:7 March 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 07 March 2023 at 9:46am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – factors beyond the applicant’s control – COVID19 travel restrictions – compelling reasons – failure to re-apply in time – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004

CASES

Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318        

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 3 March 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 is a 76-year-old citizen of Vietnam. She last arrived in Australia on a Visitor visa granted on 15 August 2019. That visa ceased on 29 February 2020. She was granted a new Visitor visa on 18 March 2020 which ceased on 30 November 2020.

3. The applicant applied for a further Visitor visa on 8 December 2020 and was granted an associated Bridging visa C on the same day. On 8 December 2020, the Department wrote to the applicant seeking further information about her Visitor visa application and, in particular, whether there were factors beyond the applicant’s control which prevented her from lodging an application while holding a substantive visa and whether there were any compelling reasons for the grant of the Visitor visa. The applicant responded on 19 February 2021.

4. On 3 March 2021, 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 satisfy the Schedule 3 requirements as set out in criterion 3004.

5. On 17 March 2021, the applicant applied for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision with her application for review.

6. The applicant appeared before the Tribunal on 6 March 2023 in relation to her application, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, Mr Pham, as a witness. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video with the agreement of the applicant.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Mr Pham only required minimal assistance from the interpreter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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 cl 600.223.

11. 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.

12. The delegate found that the applicant did not satisfy the requirements of criterion 3004.

13. 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. 

14. The issue in this case is whether the applicant meets criterion 3004. Criteria 3003 and 3005 are not relevant to this review.

    Background

15. The applicant is a 76-year-old citizen of Vietnam. She lives alone in Vietnam in Hai Phong city, Hai Phong province. She is retired and has siblings in Vietnam. Her son, who lives in Sydney and is an Australian citizen is her only child. He is married with two young children aged 5 and 3. In Australia, the applicant has been staying with her son and helping to look after her grandchildren.

16. The applicant last arrived in Australia on 30 November 2019 as the holder of a Visitor visa.

    Does the applicant meet the requirements of cl 600.223?

17. The applicant gave evidence that she was in Australia at the time she applied for her Visitor visa on 8 December 2020 and agreed that her previous Visitor visa ceased on 30 November 2020. Movement records of the Department of Home Affairs confirm this.

18. Therefore, the Tribunal finds that the applicant was in Australia at the time of application, and did not hold a substantive visa and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. On that basis, the applicant must satisfy Schedule 3 criteria 3001 and 3004.

    Does the applicant meet criterion 3001?

19. Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day. The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.

20. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 30 November 2020 and she lodged her application for a Visitor visa (which is the subject of this application for review) on 8 December 2020. Therefore, her application was lodged within 28 days of the relevant day and she meets criterion 3001.

21. She must also meet criterion 3004.

    Does the applicant meet criterion 3004?

22. As set out above, criterion 3004 includes a number of requirements. 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.

23. In her Visitor visa application form dated 8 December 2020, the applicant states that she wants to stay in Australia because of Covid-19, to stay longer with her son, she is waiting for the border to reopen and things to go back to normal and then her son will take her back to Vietnam.

24. On 8 February 2021, the Department wrote to the applicant to request more information about her Visitor visa application and, in particular, if she could demonstrate that there were factors beyond her control which prevented her from lodging an application while holding a substantive visa and that there are compelling reasons for granting the visa.

25. On 19 February 2021, the applicant responded in writing. She explained that she had forgotten about her visitor visa until a week after December 2020 when she reminded her son. She apologises that neither her son nor her remembered the end date of her visitor visa in November 2020.

26. In the Tribunal hearing, the applicant gave evidence that her son handles everything about her visas for her and she did not know the details. She remembered that she had held a tourist visa when she came to Australia and when the Tribunal reminded her about the date that her most recent Visitor visa had ceased she said she thought that sounded right. She did not know what kind of visa she currently held. The Tribunal explained to her that it was a Bridging Visa C. The Tribunal asked the applicant whether she knew anything about her last Visitor visa finishing and the reasons she did not apply for a new Visitor visa before the previous one finished. She said she had no idea.

27. The Tribunal explained to the applicant that even though she had said her son helps her with all the details for her visas, the visas are hers and not his, and as the visa holder it is her responsibility to make sure she understands what the conditions of the visa are, including what it allows her to do while she is in Australia and when it finishes. She responded that she helps her son take care of his children and her son handles her visa arrangements.

28. The Tribunal received oral evidence from the applicant’s son. He said that it was his fault that his mother’s visa had expired before she applied for a new one. He explained that he had applied for the Visitor visa to be one year in length, and he made the application in about February 2020, so he thought the new one would finish in February 2021. He hadn’t realised it was granted for less than one year. As soon as he received the email from the Department saying that his mother’s visa had expired he made inquiries with his lawyer and the Department and applied for a new one. He said that at the time he made the application for the now-expired visa in February 2020, he was stressed and working hard to support his family and he forgot to take note of the expiry date. He said he does everything for this mother and he is very sorry and it’s his fault that he didn’t look at the expiry date. It was a silly mistake.

    Was the applicant not the holder of a substantive visa when she applied for a Visitor visa because of factors beyond her control?

29. In considering whether there are reasons which constitute factors beyond the applicant's control, the Tribunal has had regard to the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, which involved a Subclass 457 visa and Sch. 3 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.

30. 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 points emerge from that case:

31. 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.

32. The Tribunal explained to the applicant and her son that it had to consider whether there were factors or circumstances beyond the applicant’s control that prevented her from lodging her current Visitor visa application while she still held a substantive visa.

33. The Tribunal put to the applicant that it might consider that she could have prevented this situation from happening (in simple terms, her Visitor visa expiring before she applied for a new one) by making sure that she and her son knew the expiry date of the visa and took the necessary steps to make the new application in plenty of time before the existing visa expired. The Tribunal put to the applicant that she and her son could have checked the visa grant documents and taken note of the expiry date and put reminders in a calendar or diary, for example, so that they were reminded to reapply in time. The Tribunal put to the applicant that it might find it was within her control to do something like this.

34. The applicant responded that she thinks the Tribunal is right, but her son had a lot going on with work and his family and so they couldn’t remember the details of the visa. The applicant’s son gave evidence that he was stressed at the time with his wife being pregnant and he was thinking about additional work. He said he could have watched the date but he expected the visa had been granted for one year and so February would be the time to reapply and he doesn’t know why the visa was only granted for nine months. The Tribunal asked the applicant whether she had anything else to say about the situation and she said she did not.

35. The Tribunal has considered the applicant’s evidence, and that of her son. The Tribunal considers that as the visa holder, the applicant had a responsibility to inform herself of the conditions of her visa, including the expiry date, and to take the necessary steps to comply with the conditions, with the assistance of another person if required. The Tribunal accepts that the applicant relied on her son to make all the arrangements with her visa and that in this case, her son did not take note of the visa expiry date and that is why the visa expired before a new Visitor visa application was lodged. The Tribunal finds that it was within the applicant’s control as the visa holder, with the assistance of her son if required, to inform herself of the expiry date of her visa and to take steps, such as using a diary or calendar, to make a note of the visa expiry date so that she and her son could lodge a new visa application before her existing visa expired. Another option may have been for the applicant and her son to have engaged the professional services of a lawyer or registered migration agent to take care of the applicant’s visa arrangements. The applicant and her son did not suggest that there were any other reasons apart from the ones they mentioned which prevented the visa application from being lodged before the expiry of the previous visa.

36. Based on all the evidence before it, and in light of the reasons set out above, the Tribunal finds that the applicant’s failure to apply for the Visitor visa while she was the holder of a substantive visa was not caused by factors beyond her control.

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

    Conclusion

38. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of cl 600.223.

    DECISION

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

    Rachel Da Costa
    Member