Tran (Migration)

[2022] AATA 3438

Tran (Migration) [2022] AATA 3438 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Tuyet TRAN

CASE NUMBER:  2107443

HOME AFFAIRS REFERENCE(S):          BCC2021/1056419

MEMBER:Linda Holub

DATE:19 September 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 19 September 2022 at 2:02pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – COVID19 travel restrictions – family health issues – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
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 7 June 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 applied for the visa on 7 May 2021. 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 because the delegate found that she lodged her application more than 28 days after she held a substantive visa.

4. The applicant appeared before the Tribunal on 6 and 14 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

2. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.

BACKGROUND

1. The review applicant is a Vietnamese citizen born in 1954 in Tien Gong, Vietnam.

2. In her Visitor visa application, the applicant stated she retired in 2010, is divorced, and has a son and daughter residing in Vietnam. While in Australia she was residing in St Albans, Victoria with her daughter who was also supporting her financially.

10) Department records indicate the review applicant has an extensive migration history, first arriving in Australia in September 2001 on a Tourist visa (subclass 676). On 29 January 2004 the applicant applied for a Partner (Residence) (class BS) 801 (Spouse) visa that was refused by the Department on 2 January 2007. The applicant sought review of the delegate’s decision at the Tribunal. The delegate’s decision was affirmed on 26 February 2009. Since that time the applicant has been granted a series of Visitor (class FA) Visitor (Tourist) (Subclass 600) visas in 2013, 2014, 2017, and 2020.

Does the applicant satisfy the relevant Schedule 3 criteria?

Criterion 3001

11) In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

12) According to Department’s Decision Record, the applicant lodged the application for a Visitor (Tourist) (subclass 600) visa on 7 May 2021. At that time, she held a Bridging E (subclass 050) visa which had been in effect since 5 May 2021. Her last substantive visa ceased on 31 January 2021 As a Bridging visa is not a substantive visa the applicant was therefore satisfy Schedule 3 criteria 3001, 3003, 3004 as outlined in regulation 600.223(2)(b).

13) The Department wrote to the applicant on 20 May 2021 providing her with an opportunity to outline the reasons she did not hold a substantive visa. Her daughter responded on the same day via email. The submission stated she had been in Vietnam in December 2017 for a three week stay, while her children stayed for a further two months. In early 2020 when the Covid-19 pandemic begun, she told the review applicant she needed help to bring her children back to Australia before it was too late. The review applicant and her grandchildren arrived in Australia in February 2020.

14) According to information provided to the Department, the review applicant intended to stay in Australia for three months, however by this stage Covid-19 was worsening and lockdowns had been implemented. They applied for a further Visitor visa while onshore which was granted and expired in January 2021. By January 2021 flights to Vietnam were still unavailable and they decided to apply for a further Visitor visa. This time she was charged over $1000, and due to the economic effects of Covid-19 she was not able to afford to proceed with the application. She stated she phoned the Department explaining their situation, who advised her to apply for a Bridging visa E which was free to apply for and would allow the visa applicant to stay in Australia lawfully for a period of three months. They then made a further Visitor visa application; however, she received an email advising it was an invalid application as the review applicant did not hold a substantive visa at the time of application and a paper application was required and, in the meantime,, she should apply for a further BVE. In her email, the visa applicant stated that following the visa applicant’s interview with the Department, they were advised to put in an application for a further Visitor visa to prevent a three-year travel ban in the future.

Evidence provided at the hearings

15) At hearing the Tribunal discussed the Department’s decision and provided the review applicant with an opportunity to make any comment. She stated that there are a lot of rules in immigration, and she does not fully understand them. She stated that at the time her visa was due to cease her daughter was not very well and she was stressed.

16) The applicant’s daughter explained that at the time there was nowhere to go in terms of their visa options. She stated that she had no money.

17) The Tribunal again explained the relevant law that must be applied and that it has no discretion in the circumstances.

18) The applicant’s daughter stated they were in a very difficult situation at the time and took the advice provided by the Departmental officer who told her to apply for the Visitor visa

19) As the review applicant had not indicated in the response to the hearing invitation that she required an interpreter, no arrangements had been made for an interpreter until the last minute. The Tribunal was able to secure one for a short period. However, with delays during the hearing caused by technical issues trying to connect with the review applicant in Vietnam, the Tribunal agreed to adjourn the hearing.

20) At the commencement of the second hearing on 14 September 2022, the Tribunal again explained the provisions of Schedule 3 criterion 3001. The Tribunal noted that the visa application was not made within 28 days of when the visa applicant last held a substantive visa.

21) The applicant’s daughter told the Tribunal that a Departmental officer called her and asked her about the situation which she explained to the officer. She stated that during Covid she started feeling unwell and she had problem and because of that she ended up in hospital. She stated that her GP said she had anxiety and only gave her medication for anxiety. She continued to have problems and required an assessment of her brain waves. She stated she thought she was going crazy. She stated she had to sell her business and that she was unable to work due to Covid. She stated the officer asked her to apply for the Visitor visa.

22) The applicant stated that her daughter was too stressed to lodge the visa application and airfares became prohibitively expensive. She stated that she did want to go home but the circumstances made impossible for her to do so.

23) The Tribunal again explained the relevant provisions and that as the application was not lodged within 28 days of her holding a substantive visa it does not have discretion in this case. The Tribunal acknowledged that the applicant may have wanted to go home earlier but was unable to do so.

24) The Tribunal noted that the visa applicant has a positive migration history and given the Covid-19 pandemic was a highly unusual situation, her previous history will hold her in good stead in the future, although how the Department assesses applications in the future is a matter for it and not the Tribunal.

Findings

25) The applicant lodged her application for a Visitor (Tourist) (subclass 600) visa on 7 May 2021. Her last substantive visa ceased on 31 January 2021 and from that time she held a Bridging visa.

26) While the Tribunal appreciates that the applicant’s daughter had some health and financial difficulties at the time the applicant’s last substantive visa was due to cease, the visa application was not made within 28 days of the relevant day, and therefore the applicant does not satisfy criterion 3001.

27) For these reasons, the applicant does not satisfy criterion Schedule 3 criterion 3001 for the purposes of cl 600.223.

28) 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

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

Linda Holub
Member

ATTACHMENT - Extract from Migration Regulations 1994

Schedule 3

3001

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.

3003

If:

(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(b)on 31 August 1994, the applicant was either:

(i)       an illegal entrant; or

(ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

the Minister is satisfied that:

(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without 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 the conditions that apply or applied to:

(i)       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

(ii)      any subsequent bridging visa; and

(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

(g)the applicant intends to comply with any conditions subject to which the visa is granted; and

(h)the last entry permit (if any) held by the applicant was not granted 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.

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.

1. A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

   (a)this Schedule; or

   (b)Schedule 6 of the Migration (1993) Regulations; or

   (c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.