WONG (Migration)

[2019] AATA 6314

WONG (Migration) [2019] AATA 6314 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yin Kwan WONG

VISA APPLICANT:  Ms Mui Lan LAM

CASE NUMBER:  1806067

DIBP REFERENCE(S):  BCC2017/4739536

MEMBER:Jane Marquard

DATE:27 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 November 2019 at 8:16am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no compassionate or compelling circumstances – made four trips to Australia without finalising resting place of husband – departed Australia as unlawful non-citizen – overstayed previous visa by more than 28 days – new application made less than 3 years after departure – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213, Public Interest Criterion 4014

CASES
Bui v Minister for Immigration & Multicultural Affairs [1999] FCA 118
Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204
Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211
Re Drake (No. 2) (1978-1980) 2 ALD 634
Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590

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 Immigration (the Department) on 29 January 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant is a woman from Hong Kong. The review applicant is her daughter, who is a permanent resident of Australia.

2. The visa applicant applied for the visa on 12 December 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet Public Interest Criterion 4014 (PIC 4014).

3. The review applicant appeared before the Tribunal on 19 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Yin Ang Wong, the sister of the review applicant. The Tribunal was informed that the visa applicant was unavailable to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant satisfies common criteria for the grant of a visitor visa contained within clause 600.213, which requires the visa applicant to satisfy a number of different public interest criteria, including Public Interest Criterion 4014 (PIC 4014).

6. Broadly speaking, PIC 4014 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as an unlawful non-citizen of the holder of a particular bridging visa. 

7. Where the applicant is affected by a ‘risk factor’ as defined in PIC 4014(4), he or she is required to satisfy one of two alternate criteria set out in PIC 4014(1) to meet PIC 4014.

8. PIC 4014(1)(a) requires, as a first alternative, that the application has been made more than 3 years after the date of the relevant departure from Australia. Alternatively, PIC 4014(1)(b) requires that the decision maker is satisfied that, in the particular case, there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within 3 years after the departure.

9. PIC 4014 is extracted in the attachment to this decision.

   Is the visa applicant affected by a risk factor in PIC 4014?

10. Based on the information before the Tribunal, including the delegate’s decision record submitted by the review applicant with the review application, the visa applicant last departed Australia on 4 August 2017. She had at that time overstayed her FA 600 visa by more than 28 days as her visa had expired on 30 June 2017. She therefore departed Australia as an unlawful non-citizen. The Tribunal confirmed this with the review applicant at the hearing.  The Tribunal finds that as the visa applicant’s visa expired on 30 June 2017 she did not leave the country within 28 days of her last substantive visa.

11. Based on the information before it, the Tribunal finds that the visa applicant last departed Australia without a visa more than 28 days after her visa expired. The Tribunal accordingly finds that none of the exceptions in PIC 4014(5) apply to the visa applicant.

12. Given the above, the Tribunal finds the visa applicant is affected by the risk factor in PIC 4014(4).

    Was the visa application made more than 3 years after the applicant’s departure from Australia: PIC 4014(1)(a) ?

13. The Tribunal finds that the visa applicant last departed Australia on 4 August 2017 and she applied for the visa which is the subject of this review on 12 December 2017, less than 3 years after her departure. The Tribunal confirmed this with the review applicant at the hearing.

14. As the visa application was made less than 3 years after the visa applicant’s departure from Australia, the Tribunal therefore finds that the visa applicant does not meet PIC 4014(1)(a).

    Are the waiver provisions in PIC 4014(1)(b) met?  

15. PIC 4014(1)(b) provides as follows:

    4014

    (1)  If the applicant is affected by the risk factor specified in subclause (4):

    (a)  the application is made more than 3 years after the departure of the person from  Australia referred to in that subclause; or

    (b)  the Minister is satisfied that, in the particular case:

    (i)  compelling circumstances that affect the interests of Australia; or

    (ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa within 3 years after the departure.

16. The review applicant acknowledged at the hearing that there are no compelling circumstances that affect the interests of Australia. 

17. The applicants submitted however that there are compassionate or compelling circumstances that affect the interests of Australian permanent residents, as the review applicant and her sister in Australia, Ms Yin Ang Wong, are Australian permanent residents.

18. They argued that the overstay of the visa was a mistake, and that the visa applicant needed to travel to Australia to lay her husband to rest.

19. The visa applicant initially requested a waiver of the three year exclusion period in order to travel to Australia for three months from 1 January 2018 to 30 March 2018. She stated that she wished to travel to Australia to lay her spouse, Mr Wong Yau Po, who passed away in October 2016, to rest and give him the ceremony he deserved.

20. The review applicant and her sister submitted at the Tribunal hearing that the family all understand and apologise for the fact that the visa applicant overstayed her previous visa, however they claim that the overstay was a mistake and there were mitigating circumstances.  They claim that the review applicant and her parents initially travelled on a three month holiday to Australia. While in Australia, the visa applicant’s husband fell ill and was admitted to hospital. They had planned to go home upon the expiry of their visas but he was still in hospital so they applied for and were granted an extension. With the sudden illness, they applied for an onshore Visitor 600 visa, which had an expiry date of June 2017. The Electronic Travel Authority visas (ETAs) they had been using since 2000 always had dates of expiry of three months after arrival so this confused them. When the visa applicant entered the country in May 2017 she thought that she had three months from that date and made arrangements to leave in August 2017. So she did not realise that she was unlawful.

21. The review applicant submitted that suddenly, in October 2016 her father passed away. The visa applicant was distressed so they took her to her sister in Hong Kong for recuperation. However she came back and forth to Australia, and as yet they have not found a place of rest for their father. The visa applicant’s father died one month later. With the loss of two close relatives, they could not manage everything during the year. They only realised at the airport that they had misunderstood the departure date on the Electronic Travel Authority.

22. The review applicant said that after the death of her family members the visa applicant is very sad and often stays in her room. They are worried about her. Her sister is with her in Hong Kong but she is still very sad. They are still waiting to put their father in his resting place. When the visa applicant came to Australia they tried to find a resting place for her husband, but they had to go back to China for cultural reasons to get the resting place affirmed. Asked if the visa applicant had visited Australia four times since the death of their father such that they could have made arrangements for the resting place, she said her mother did come to Australia on and off. During one of the visits, they heard that their grandfather had passed away. Asked why he was not laid to the rest up until now, she said that the first time, her mother ‘started to prepare it’, but the procedure was slow and she could not concentrate. They could not push her. They found out that their grandfather was in hospital. They did try to sort the matter out, but the grandfather’s health got in the way and they could not manage it.

23. Ms Yin Ang Wong said that under Chinese culture there is much to do to arrange a final resting place. First the family must obtain information from a temple then they must go to the native village in China to consult as to whether the time to lay the deceased person to rest is appropriate according to the lunar calendar. After they obtained the ceremonial time they arrived in Australia on January 24, but then they heard that their grandfather had passed away. They had to return to China for the funeral of the grandfather.  The two sisters had to escort their mother to Hong Kong on the 8^th of April as she had collapsed. They returned in May to continue on with the procedures for the father’s burial. She said that it ‘was not like they were not doing anything’, they attempted to do so but it was not effective. The visa applicant has been staying with Ms Wong after the death, and she had poor sleep. She delays sleeping until 2 or 3 am. She has lost both her husband and father and is afraid of telephone calls. They are concerned about her situation. Ms Wong said that her mother needs to put her husband to final rest. One sister is in Hong Kong with her, but they are both very sad. The visa applicant wants to finish a promise to her husband that they would travel to Australia together.

24. The visa applicant provided the following documents in support of her application:

    ·Notarial certificate of birth of the review applicant;

    ·Certificate of cremation for the visa applicant’s husband, Mr Po;

    ·Marriage certificate for the visa applicant;

    ·Property agreement for the review applicant and the visa applicant.

25. The representative submitted that the two sisters are Australian permanent residents who have lost both a father and grandfather, and are distressed that they have not been able to help their mother keep her promise to their dying father. This does impact on them as Australian permanent residents as they need to find closure and move forward.

26. The Tribunal has considered carefully whether the circumstances submitted by the applicants amounts to compassionate or compelling circumstances that affect the interests of Australian permanent residents and justify the granting of the visa within three years of departure.

27. The term 'compelling' is not defined in the legislation. The ordinary dictionary definition is ‘to force or drive, especially to a course of action’ or to ‘bring about moral necessity’.

28. ‘Compassionate’ has been defined as ‘circumstances that invoke sympathy or pity’.

29. The Tribunal had regard to the policy statements set out in the Procedures Advice Manual (PAM 3) regarding when the waiver in PIC 4014(1)(b) may be applied and the various examples given as to what may constitute compelling circumstances that affect the interests of Australia, or constitute compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa. However, The Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. The examples offered in the policy are neither determinative nor exhaustive.

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

30. The concept of compelling or compassionate circumstances has received some critical interpretation by the courts. In Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204, it was not contested that compelling reasons must involve something in addition to the basic pre-requisite criteria for the grant of the visa, however, the term “compelling” was not further defined. In relation to the words “compelling or compassionate”, in Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590 at [21], O’Loughlin J considered that:

    There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.

31. In relation to the waiver of the health provisions, in Bui v Minister for Immigration & Multicultural Affairs [1999] FCA 118, the Full Federal Court at [47 – 48] considered that “compelling” had a wider ambit than “compassionate”. In the case of Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211, which involved the issue of compelling reasons for an applicant’s absence from Australia in relation to a resident return visa, the Federal Court held that the ordinary meaning of “compelling” is “forceful” and that forceful reasons for an absence may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.

32. Taking the ordinary meaning of the words into account as well as these decisions, the Tribunal is not satisfied that the circumstances are of such gravity that they invoke forcing or driving a course of action, such that the circumstances would be compelling. The visa applicant had four trips to Australia without finalising the resting place of her husband, and also will be able to make these arrangements once the three year period is over in 2020. The Tribunal also considers that there are not compassionate circumstances that justify the grant of a subclass 600 visa to the visa applicant within the relevant 3 year period in PIC 4014. While the situation of the visa applicant who lost her husband and father in 2016 and 2017 does invoke sympathy, she has her sister and a daughter with her in Hong Kong. Furthermore, she will be able to travel to Australia after the end of the three year period. The Tribunal must be satisfied that the compassionate circumstances justify the grant of the visa within the three year period, in other words that they are of such gravity that they justify departure from a provision directed at protecting the integrity of the migration system. As stated by Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590 at [21], O’Loughlin J considered the circumstances must therefore be ‘far-reaching and most heavily persuasive’ .The Tribunal is not satisfied that the circumstances in this case reach this level of persuasiveness.  The Tribunal is not satisfied therefore that there are, in the particular case, compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, which justify granting the visa within 3 years after the departure.

33. In light of the findings above, the Tribunal is not satisfied that the applicant meets the requirement in PIC 4014 for the purposes of cl.600.213.

    Concluding paragraphs

34. On the basis of the above, the applicant does not satisfy PIC 4014 for the purposes of cl.600.213.

    DECISION

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

    Jane Marquard
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    ATTACHMENT  -  PIC 4014

    4014

    (1)  If the applicant is affected by the risk factor specified in subclause (4):

    (a)  the application is made more than 3 years after the departure of the person from  Australia referred to in that subclause; or

    (b)  the Minister is satisfied that, in the particular case:

    (i)  compelling circumstances that affect the interests of Australia; or

    (ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa within 3 years after the departure.

    (4)  Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:

    (a)  an unlawful non-citizen; or

    (b)  the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.

    (5)  Subclause (4) does not to apply to a person if:

    (a)  the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or

    (b)  a bridging visa held by the person at the time of departure was granted:

    (i)  within 28 days after a substantive visa held by the person ceased to be in effect; or

    (ii)  while the person held another bridging visa granted:

    (A)  while the person held a substantive visa; or

    (B)  within 28 days after a substantive visa held by the person ceased to be in effect.