Sun (Migration)

[2022] AATA 614

Sun (Migration) [2022] AATA 614 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Huanjie Sun

CASE NUMBER:  2106783

HOME AFFAIRS REFERENCE(S):          BCC2021/204937

MEMBER:Rachel Da Costa

DATE:4 March 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 04 March 2022 at 9:41am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at date of application – impact of COVID travel restrictions – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3, Criterion 3001

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 May 2021 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 applicant is 72 years old and is a citizen of China. She last arrived in Australia on 7 August 2019 as the holder of a Visitor visa. The Visitor visa ceased on 7 August 2020.

3. The applicant applied for a further Visitor visa on 3 February 2021. On 3 May 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 3001 of the Migration Regulations 1994 (Cth) (the Regulations).

4. On 20 May 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.

5. The applicant provided a number of documents to the Tribunal in support of her application including:

   ·     Personal statement from the applicant explaining the family violence her daughter and grandson have experienced and the associated difficulties for both of them, explaining why she delayed applying for a Visitor visa and that she needs to be able to stay in Australia to help look after her daughter and grandson because of their difficult circumstances;

   ·     Letters of support dated 1 February, 12 and 13 May 2021 from her daughter’s medical practitioners describing the daughter’s very difficult personal circumstances, including being a victim of domestic violence and associated health issues, and the behavioural problems her child (the applicant’s grandson) is suffering and the help they are receiving from the Royal Children’s Hospital in Melbourne. The doctors strongly recommend that the daughter and grandson require ongoing support from the applicant for their well-being;

   ·     Letter from a Senior Social Worker at the Royal Children’s Hospital dated 30 October 2020 in support of the Additional Childcare Subsidy for the applicant’s daughter linked to the additional care the grandson needs due to his behavioural issues and the impact of that on the applicant’s daughter, in addition to the impacts of family violence;

   ·     Letter dated 29 September 2020 from a Maternal and Child Health Nurse at Moreland City Council in support of an application for Additional Childcare Subsidy for the applicant’s daughter due to her and the grandson’s vulnerability following exposure to family violence;

   ·     Letter dated 13 November 2019 from an Advanced Child Protection Practitioner in the Victorian Department of Health & Human Services in support of the application for the Additional Child Care Subsidy for the applicant’s grandson in light of the difficulties the applicant’s daughter and grandson are experiencing due to being exposed to family violence and parental substance abuse; and

   ·     Bank statements of the applicant in Australia.

6. The applicant appeared before the Tribunal on 3 March 2022 to give evidence and present arguments by telephone. The Tribunal also received oral evidence from the applicant’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant gave evidence about her background and circumstances. The applicant’s daughter gave evidence about the applicant’s visa applications, which she said she was responsible for arranging, as well as about her personal circumstances. The Tribunal found the applicant and her daughter to be truthful witnesses.

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

   CONSIDERATION OF EVIDENCE AND FINDINGS

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). 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 Schedule 3 criterion 3001.

13. Criterion 3001 provides:

    (1)  The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)  For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)  if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

    (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or

    (c)  if the applicant:

    (i)  ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)  entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)  the last day when the applicant held a substantive or criminal justice visa; or

    (iv)  the day when the applicant last entered Australia unlawfully; or

    (d)  if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

    (i)  the day when that last substantive visa ceased to be in effect; and

    (ii)  the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

14. The issue in this case is whether the applicant meets the requirements of criterion 3001.

    Background

15. The applicant is a citizen of China. In China, she lives with her husband in Lianyungang city, Jiangsu province. They are both retired and live off their retirement incomes. Her husband remits money from China for the applicant’s living expenses in Australia.

16. The applicant has one daughter who has lived in Australia since 2010 and is an Australian citizen. Her daughter has one child who is 2 years old (the applicant’s grandson). Her daughter is estranged from her former husband and there have been issues of domestic violence, involving child protection and the police.

    Visa history

17. The applicant last arrived in Australia on 7 August 2019 as the holder of a Visitor visa. This visa ceased on 7 August 2020. After the visa ceased the applicant applied for a Bridging Visa E. On 3 February 2021, she applied for a new Visitor visa.

18. On 14 April 2021, the Department wrote to the applicant requesting more information about her Visitor visa application, noting that the last substantive visa she held ceased on 7 August 2020 and that there is no provision to grant a Visitor visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. The Department invited the applicant to comment on the information that she did not hold a substantive visa within 28 days of lodging her application for a Visitor visa.

19. In an undated written response to the Department, the applicant explained that she originally planned to leave Australia on 7 August 2020 but due to COVID lockdown restrictions and flights to China being cancelled she was unable to fly. She applied for a Bridging Visa E immediately after 7 August 2020 and has continued to monitor the flight situation but it has not improved and so she has lodged a Visitor visa application. The application was lodged on 3 February 2021.

20. On 3 May 2021, the delegate found that as the application for a Visitor visa was lodged more than 28 days after the applicant last held a substantive visa, the applicant does not meet Schedule 3 criteria 3001 of regulation 600.223(2).

21. In the Tribunal hearing, the applicant’s daughter gave evidence that she has always arranged the applicant’s visas for her. She said that when she realised the applicant’s visa was about to expire it was at the time when the applicant could not travel back to China because of the Covid-19 situation and also she (the applicant’s daughter) was not coping well because of the family violence situation she was involved in with her partner, and her young baby was very unsettled so she needed her mother to stay and help her. The applicant’s daughter gave evidence that she called the Department and was told to apply for a Bridging Visa E once the applicant’s visa expired, which is what she did. Around and after this time, the applicant’s daughter was involved in attempted mediation and legal proceedings with her ex partner which involved intervention orders arising out of the family violence situation. It was a very difficult time. She was not aware of the timeframes and deadlines for applying for a new Visitor visa and by the time she arranged for her mother’s Visitor visa application to be lodged on 3 February 2021 she found out it was too late when the application was rejected. The Tribunal accepts this evidence.

    Does the applicant meet the requirements of cl 600.223?

22. The applicant and her daughter gave evidence that she was in Australia at the time she applied for her Visitor visa on 3 February 2021 and that her previous Visitor visa ceased on 7 August 2020. Records of the Department of Home Affairs confirm this.

23. 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 to be eligible for the visa.

    Does the applicant meet criterion 3001?

24. 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.

25. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 7 August 2020 and she lodged her application for a Visitor visa (which is the subject of this application for review) on 3 February 2021. Therefore, her application was not lodged within 28 days of the relevant day.

26. On this basis, the applicant does not meet criterion 3001, which means she cannot meet the criteria in cl 600.223.

    Conclusion

27. For the reasons given above, the Tribunal is not satisfied that the visa applicant meets the requirements of cl 600.223.

    Referral for Ministerial Intervention

28. Having considered the circumstances of the applicant and her daughter, the Tribunal has decided to refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. In particular the Tribunal notes the following:

29. The applicant’s Visitor visa was a five-year multiple-entry visa with a maximum 12 month stay and it ceased on 7 August 2020 when, due to the Covid-19 situation, it was not possible for the applicant to depart Australia and return to China;

30. On the advice of the Department, the applicant’s daughter, who is an Australian citizen, took steps to obtain a Bridging Visa E for the applicant as soon as possible to ensure that the applicant remained lawful. The applicant was granted a Bridging Visa on 13 August 2020.

31. From her conversations with the Department, the applicant’s daughter did not understand that there was a short deadline within which the applicant needed to apply for a new Visitor visa, which is why she did not apply much sooner.

32. During this time, in addition to the Covid-19 situation, the applicant’s daughter was going through an extremely difficult time because of domestic violence perpetrated by her partner, as well as trying to look after her very unsettled young baby. The police and child protection units were involved and the applicant’s daughter was experiencing significant physical and mental health consequences as a result. At this time, the applicant’s daughter and her son needed, and they continue to need, the support of the applicant (her mother).

33. The applicant has provided a number of letters from health professionals and others in support of the extremely difficult circumstances being experienced by her daughter and grandson (see paragraph 5 above) and their need for ongoing support from the applicant.

34. The applicant wishes to be able to apply for a new Visitor visa so she can remain in Australia for the time being to support her daughter and grandson.

35. The applicant has held Visitor visas in the past and there is no evidence to suggest that she has not complied with the conditions of those visas.

36. The Tribunal notes that the Minister’s guidelines refer to consideration of strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

37. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Rachel Da Costa
    Member