Wang (Migration)

[2022] AATA 1809

Wang (Migration) [2022] AATA 1809 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baoan Wang

REPRESENTATIVE:  Ms Qing Qin (MARN: 1796643)

CASE NUMBER:  2105918

HOME AFFAIRS REFERENCE(S):          BCC2020/2167758

MEMBER:Naomi Schmitz

DATE:1 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2022 at 2:41pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made after last substantive visa ceased – factors beyond applicant’s control – forgot expiry date, then took immediate action – COVID-19 restrictions and costs of travel – visa history – unable to apply for temporary graduate visa until graduation certificate received – approached department after previous visa expired – applicant’s responsibility to maintain lawful status – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(a), Schedule 3, criterion 3004(c)

CASES
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
Secretary, Department of Social Security v Secara (1998)  89 FCR 151
Su v MIAC [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 14 April 2021 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 25 August 2020.

3. 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, which requires if the visa applicant lodges the application in Australia, that the visa applicant satisfies the requirements of Schedule 3 criterion 3001, 3003, 3004 and 3005.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because the delegate was not satisfied that the applicant met the requirements of Schedule 3004. Relevantly in this case, the delegate was not satisfied that the visa applicant satisfied criteria 3004(c), that the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control.

5. On 5 May 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

6. The applicant appeared before the Tribunal on 17 May 2022 to give evidence and present arguments. The applicant was represented in relation to the review. The representative did not appear at the hearing.

7. In support of the application for review the representative provided legal submissions dated 8 May 2022. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The requirements of cl.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:

   (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.

   The requirements of Schedule 3004 apply

   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; and

   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.

   Is criterion 3004 met?

9. Criterion 3004 applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa.

10. It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant.

11. In addition, the Tribunal must be satisfied that: the applicant would have satisfied the criteria, or would have been entitled to be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa; the applicant intends to comply with any conditions of the visa; and, 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 further entry permit, while the holder remained in Australia.

    Assessment of the evidence in relation to criterion 3004

12. Based on the information available to the Tribunal, the Tribunal is satisfied that the applicant was in Australia at the time of application and did not hold a substantive visa. Therefore the requirements of cl.600.223(2) apply to the applicant. The last substantive visa the applicant held was not a subclass 403 visa. Therefore the applicant meets the requirements of cl.600.223(2)(a). The applicant lodged the application for the visa within 28 days after the expiry of her last substantive visa and therefore satisfies criterion 3001. Criteria 3003 does not apply. It is for this reason that the application for the visa made by the applicant engages criterion 3004.

13. The applicant gave evidence that his last substantive visa was a Student Subclass 500 visa which ceased on 30 July 2020. The applicant confirmed he lodged the visa application which is the subject of this review on 25 August 2020. Therefore, the applicant meets 3004(a). The requirements of 3004(b) are an alternative to 3004(a) and therefore do not apply.

14. In the delegate’s decision record dated 14 April 2021, the delegate found that the applicant did not meet 3004(c), which requires that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control.

15. In the representative’s submissions:

    a.He conceded ‘the applicant become unlawful stay due to he forgot the visa expire date’ but that ‘it is not an intentionally action but an innocent mistake’;

    b.The applicant took immediate action to correct the mistaken;

    c.He applied for a paper based Visitor visa Subclass 600 visa to remain lawful in Australia;

    d.The COVID-19 pandemic prevented the applicant from leaving as soon as he was aware of not holding a substantive visa, as the COVID-19 pandemic resulted in the closure of international borders; restrictions to interatrial flights and exorbitant air flight ticket costs; and

    e.The COVID-19 pandemic constitutes a compelling reason to grant the visa.

16. At hearing the applicant confirmed that he had been granted various visas in the past including a Subclass 571 School Sector visa, a Subclass 573 Student visa and two Subclass 500 Student visas between July 2011 and 18 May 2020. He confirmed when granted his visas he was aware of the expiry dates and would read the grant notices.

17. The Tribunal Member asked the applicant if he had ever used a representative to assist with his migration matters and whether he had an IMMI, Visa Entitlement Verification Online (VEVO) account or registered email account with the immigration department. The applicant confirmed that he used a migration agent for his first Subclass 571 School Sector visa, but prepared and submitted the last three Student visas himself. He also confirmed he had a registered email account with the immigration department which allowed him to receive visa grant notifications.

18. The Tribunal Member asked the applicant how not holding a substantive visa at the time of application for the visa was because of factors beyond his control. The applicant stated that he had wanted to apply for a further Student Subclass 485 visa, but could not lodge the application because he was waiting for his graduation certificate which he required to submit his Student visa application. He explained his migration agent had advised it was better than a visitor visa Subclass 600 as he could work and travel when holding a Student visa, whereas he would not have work rights if on a visitor visa.

19. The Tribunal Member put to the applicant that although the Tribunal understood that his Student visa was his first choice of visas and understood he was waiting for a graduation certificate to lodge his Student visa, this did not account for how this prevented him from lodging his refused visitor visa whilst still holding a substantive visa. The applicant again stated it was a factor beyond his control because he could not apply for the 485 Student visa because he had not yet graduated. The Tribunal Member again put to the applicant that this did not explain why he did not apply for his visitor visa prior to the expiry of his Subclass 500 visa. The applicant again reiterated his preference was a Student visa which he could not apply for because he did not have the relevant graduation certificate.

20. The Tribunal Member asked the applicant whether he had plans to leave Australia prior to the expiry of his Student visa and if so, when he was planning to depart Australia. The applicant confirmed he had not made plans to depart Australia and had not booked any flights as flights were ‘closed’.

21. The Tribunal Member asked the applicant if he had ever tried to contact Department of Home Affairs prior to the expiry of his last substantive visa. He confirmed he spoke to the Department after the expiry of his Student visa in mid-August.

22. In considering whether there were factors beyond the applicant's control, the Tribunal has had regard to the decision in Su v MIAC [2007] FMCA 318; Liu v MIAC [2010] FMCA 60; and Montero v MIBP [2014] FCCA 946.

23. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 involved Schedule 3 criterion 3004 in the context of a Subclass 457 visa. While the application in that case was dismissed by the Court, the judgment provides guidance on the interpretation of the test of factors beyond the control of a person. Smith FM, referring to the judgment 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:

    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.

24. In the case of Su[1], the court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that It was difficult to regard as ‘beyond control’ an event caused by forgetfulness or misunderstanding on the part of the person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.

    [1] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

25. In Montero v MIBP [2014] FCCA 946 the applicant claimed that he met cl.3004(c) as he had submitted documents to his employer who prepared the application, repeatedly advised them of his visa expiry date, and that this was a type of visa application which required his employer’s assistance to lodge. The Tribunal did not accept it was beyond the applicant’s control to lodge the application within time himself and found that his decision to let the employer lodge the application was a choice made within his control, referring to Su v MIAC [2007] FMCA 318. The court found that the Tribunal made a jurisdictional error by misconstruing or misapplying cl.3004(c). Although the Tribunal referred to the exposition of the expression ‘beyond the control of a person’ in Su, it did not apply it. According to the court in Montero, the Tribunal failed to consider the fact that the applicant could not have applied for the visa without the cooperation of his employer; and that the applicant could not direct his employer to do what it had to do to enable him to apply before his Subclass 572 visa expired. In that regard cl.857.213(a) required that he must have been nominated by an employer for an appointment in the business of that employer.

26. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. In upholding the Tribunal’s decision, the court reiterated that the test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

27. The Tribunal has considered all the evidence, nonetheless, is the applicant’s responsibility to be aware of the expiration date of his visa and to make arrangements to depart Australia during that visa or, if that is not possible, to lodge a further visa whilst holding a substantive visa to regularise his migration status in Australia.

28. As noted in the delegate’s decision record, whilst the applicant was trying unsuccessfully to apply for a Subclass 485 visa, which he thought was more suitable for his circumstances, when he realised his Subclass 500 visa had expired and forgot to file his visitor visa application on time, the onus is on the applicant to make appropriate arrangements to maintain a lawful status in Australia and abide by their visa conditions.

29. Knowledge of the expiration date of his previous Student visa was information within the applicant’s control. As noted in Su[2], the applicant could have kept himself informed of the expiry date of his visa by checking his visa grant notice via his registered email migration account, as he had previously done, or appointing a representative to do so. In Liu the court found that lack of English and the complexity of the visa system did not amount to factors beyond the applicant’s control. Similarly, in this case the applicant could have taken steps to apply for the visa in time. To the contrary the applicant did not make contact with the Department until mid-August, after his Student visa had expired.

    [2] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

30. The Tribunal does not accept that forgetting the expiry date of his last substantive visa constitutes a factor beyond his control as noted by the above intermediate appellate court authorities. Further, the Tribunal does not accept that waiting for his graduation certificate was a factor beyond his control for lodging his visitor visa, as the document was not required to lodge his visitor visa application. Further, although his Student visa was his first preference of visas, it does not satisfactorily explain how it constitutes a factor beyond his control for not applying for the refused visitor visa whilst holding his previous substantive visa. The Tribunal further notes that the applicant has been granted a total of four Student visas, three of which he organised himself and travelled to Australia on multiple occasions, over many years and therefore could have taken the same care as indicated by his prior conduct.

31. There is no credible or independent evidence that the applicant was incapacitated or unable to apply for the visitor visa prior to the expiration of the applicant’s previous visitor visa. While the Tribunal has considerable sympathy for the applicant’s circumstances and accepts that he did not intentionally overstay his visa, the Tribunal is satisfied that the circumstances were not beyond the applicant’s control. The Tribunal is therefore not satisfied that the applicant meets 3004(c).

32. The Tribunal accepts that there are compelling reasons for the grant of the visa, namely the COVID-19 pandemic which has led to limited international flights, flight disruptions including flight cancellations and specific requirements for travel and the consequent prohibitive costs of many international flights. The Tribunal is therefore satisfied that these are compelling reasons for the grant of the visa and that the applicant meets 3004(d).

33. Based on the evidence before the Tribunal, the Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to her last visitor visa (excluding the condition with which the applicant was in breach because the visa had expired at the time of application for the visa which is the subject of this review), and the Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to the subsequent bridging visa that he was granted. The Tribunal therefore finds the applicant has met the requirements of 3004(e)(ii), and therefore the applicant meets 3004(e).

1. There is no evidence before the Tribunal to indicate that the applicant would not have been entitled to the grant of a visitor visa, if the applicant had applied for the visitor visa whilst the holder of a substantive visa at the time of application. Therefore, the applicant meets 3004(f).

2. Based on the information available to the Tribunal, the Tribunal is satisfied that the applicant intends to comply with the conditions to which the visa would be subject. Therefore, the applicant meets 3004(g).

3. The last visa held by the applicant was not a transitional (temporary) visa, and therefore the requirements of 3004(h) do not apply.

4. For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl 600.223. 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

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

   Naomi Schmitz
   Member