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

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).
The visa applicant applied for the visa on 25 August 2020.
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.
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.
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.
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.
In support of the application for review the representative provided legal submissions dated 8 May 2022.
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wang (Migration)

Details

AGLC: Wang (Migration) [2022] AATA 1809
Case: [2022] AATA 1809
Decision Date: 1 June 2022

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, made by an applicant who was in Australia but did not hold a substantive visa at the time of application. The applicant’s last substantive visa, a Student (subclass 500) visa, had expired on 30 July 2020, and the application for the subclass 600 visa was lodged on 25 August 2020. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, particularly those in Schedule 3, which apply when an applicant does not hold a substantive visa at the time of application.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3004 of Schedule 3. This criterion requires the Minister to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions of their previous visas. The applicant argued that their failure to maintain lawful status was due to an innocent mistake of forgetting the visa expiry date, and that subsequent actions to correct this were hindered by COVID-19 restrictions, including border closures, flight cancellations, and exorbitant travel costs.

The Tribunal considered the applicant's submissions and evidence, including their visa history which showed a pattern of holding various student visas and awareness of their expiry dates. While acknowledging the applicant's immediate action to apply for a new visa and the impact of COVID-19, the Tribunal found that the applicant had not demonstrated that their failure to hold a substantive visa was due to factors beyond their control. The Tribunal noted that the applicant had previously been aware of visa expiry dates and had a responsibility to maintain lawful status. Consequently, the Tribunal concluded that criterion 3004 was not met.

The Tribunal affirmed the delegate's decision, finding that the applicant did not satisfy the requirements of criterion 3004 of Schedule 3. Therefore, the application for the Visitor (Class FA) visa, subclass 600, was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEThe 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 applyIf 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; andthe 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? 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.

Ratio Decidendi

Legal Principle Established

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