Wang (Migration)

[2022] AATA 2012

Wang (Migration) [2022] AATA 2012 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xuelin Wang

CASE NUMBER:  2201876

HOME AFFAIRS REFERENCE(S):          BCC2021/725292

MEMBER:Joseph Lindsay

DATE:9 June 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 June 2022 at 12:09pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – impact of the COVID19 pandemic – travel restrictions – compelling reasons – family bereavement – caring responsibilities – 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 3 February 2022 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 15 December 2021. The applicant attended the Tribunal by audio on 3 June 2022 to give evidence and present arguments. The applicant’s daughter, Ms Qiuya Chen, and the applicant’s friend, Mr Charles Ye, also participated in the hearing. The applicant was assisted by an interpreter.

   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’s friend, Mr Charles Ye, provided written submissions and attachments to the Tribunal prior to the hearing. The Tribunal has considered those submissions.   

5. In respect to the decision from the Department dated 3 February 2022, the applicant indicated that the information in the decision record was correct. The decision record states that the applicant lodged an application for an FA600 Visitor- Tourist Stream visa on 17 December 2021 and that she last held a substantive Visitor (Tourist) (subclass 600) visa which ceased on 27 November 2021.

6. The applicant’s daughter, Ms Chen, gave evidence that she had been primarily responsible for assisting her mother (the applicant) with her visa application, as the applicant does not speak English. The Tribunal received evidence that Ms Chen, who had been helping the applicant, was in China around the time the applicant’s visa expired and had experienced difficulties in coming back to Australia due to the various lockdowns and travel restrictions caused due to Covid-19. However, Mr Ye, a friend of the applicant, had previously worked for Ms Chen and offered to assist the applicant with her visa application. However, there appeared to have been a misunderstanding as to the expiry date for the previous visa. Ms Chen indicated that a significant reason for the failure to submit the application prior to the expiry date of the previous visa was the death of the applicant’s mother in China in November 2021. Ms Chen gave evidence that the applicant is currently caring for Ms Chen’s daughter who is currently attending secondary school in Australia.

7. In consideration of the information provided to the Tribunal, the Tribunal makes the following findings. The Tribunal accepts that the applicant has poor English skills and relied on her daughter, Ms Chen, for assistance. The Tribunal accepts that Ms Chen, who had been helping the applicant, was in China around the time the applicant’s visa expired and had experienced difficulties in coming back to Australia due to the various lockdowns and travel restrictions caused due to Covid-19. The Tribunal accepts that Mr Ye had assisted the applicant with her visa application. The Tribunal accepts that there was misunderstanding as to the expiry date for the previous visa. The Tribunal accepts that a significant reason for the failure to submit the application prior to the expiry date of the previous visa was the death of the applicant’s mother in China in November 2021. The Tribunal accepts that the applicant is currently caring for Ms Chen’s daughter who is currently attending secondary school in Australia.

8. Given the above findings, the Tribunal is satisfied that there were factors outside the applicant’s control preventing her 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.

9. 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

10. 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