Pan (Migration)

[2022] AATA 1643

Pan (Migration) [2022] AATA 1643 (9 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huiwen Pan

REPRESENTATIVE:  Mrs Huan Huang (MARN: 1801056)

CASE NUMBER:  2018014

HOME AFFAIRS REFERENCE(S):          BCC2020/1860362

MEMBER:Joseph Lindsay

DATE:9 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.223 of Schedule 2 to the Regulations.

Statement made on 9 May 2022 at 11:19am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – delay in processing visa application payment – factors beyond the applicant’s control – compelling reasons – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; 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 on 25 November 2020 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 7 July 2020. The applicant attended the Tribunal by audio on 21 April 2022 to give evidence and present arguments. He was assisted by an interpreter. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in the present case is whether the applicant meets the requirements of cl.600.223 of the Regulations. Cl.600.223 provides that:

   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:  (Tribunal emphasis)

   (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. (Tribunal emphasis)

4. The Tribunal notes that the applicant provided to the Tribunal a copy of the decision from the Department dated 25 November 2020, and he indicated that that information in the decision record was correct. The applicant made admissions that he lodged an application for an FA600 Visitor- Tourist Stream visa on 7 July 2020 and that the applicant last held a substantive Tourist Stream (FA 600) visa on 13 June 2020.

5. In the hearing, the applicant gave evidence that he did pay for the visa application using Bpay, but there was a delay in processing the payment. He indicated that once he was aware of his error, he subsequently made the payment. The Tribunal discussed the evidence the applicant provided, including in respect to bank records showing the various payments.

6. In consideration of the information provided to the Tribunal, the Tribunal makes the following findings. The Tribunal accepts that the applicant did pay for the visa application using Bpay, but there was a delay in processing the payment. The Tribunal accepts that once the applicant was aware of his error, he subsequently made the payment.

7. Given the above findings, the Tribunal is satisfied that there were factors outside the applicant’s control preventing them from lodging an application whilst holding a substantive visa and the Tribunal is satisfied that there are compelling reasons for the grant of the visa. The Tribunal is satisfied that the applicant has complied with Criterion 3004.

8. Accordingly, the Tribunal finds that the applicant satisfies cl.600.223 and is therefore eligible for the grant of the Class FA Subclass 600 Visitor visa.

   DECISION

9. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa: cl.600.223 of Schedule 2 to the Regulations.

   Joseph Lindsay
   Member