Xu (Migration) - [2021] AATA 5480

Xu (Migration) [2021] AATA 5480 (12 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Shi-Ting Xu
CASE NUMBER:  2017013
HOME AFFAIRS REFERENCE(S):          BCC2020/1803365
MEMBER:Jane Marquard
DATE:12 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 12 October 2021 at 10:00am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – Schedule 3 criteria – not holder of substantive visa at time of application – whether because of factors beyond applicant’s control – mistaken about visa expiry date – stressed and overwhelmed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004
CASES
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
Secretary, Department of Social Security v Secara & Ors (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 13 November 2020 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The visa applicant is a woman from Taiwan, born in 1982.
The visa applicant applied for the visa on 25 June 2020. 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.
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 the visa applicant to satisfy the Minister that she meets Schedule 3 criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because at the time she applied for the visa she did not hold a relevant substantive visa and did not satisfy criterion 3004 in Schedule 3 to the Regulations. These provisions are discussed further below.
The applicant appeared before the Tribunal on 30 September 2021 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent who was present for part of the hearing. The hearing was conducted by video conference due to restrictions resulting from the COVID-19 pandemic. The applicant confirmed that she could see and hear well. The Tribunal was satisfied that the hearing conducted by video provided the applicant with a fair opportunity to be heard.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

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 Xu (Migration)

Details

AGLC: Xu (Migration) [2021] AATA 5480
Case: [2021] AATA 5480
Decision Date: 12 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream). The applicant, Ms. Xu, sought review of a decision not to grant her the visa. The central issue was whether Ms. Xu met the requirements of clause 600.223 of the Migration Regulations 1994, specifically concerning Schedule 3 criteria, as she did not hold a substantive visa at the time of her application.

The Tribunal was required to determine if Ms. Xu satisfied Schedule 3 criteria 3001, 3003, 3004, and 3005. Clause 600.223(2)(b) mandates that an applicant who does not hold a substantive visa at the time of application must satisfy these Schedule 3 criteria. A key component of this assessment was criterion 3004, which requires the Tribunal to be satisfied of several sub-points, including whether the applicant was not the holder of a substantive visa due to factors beyond her control, whether there were compelling reasons for granting the visa, and whether she had substantially complied with visa conditions.

The Tribunal found that Ms. Xu did not hold a substantive visa at the time of her application, as her Working Holiday visa had expired on 2 June 2020, and her application was made on 25 June 2020. While she satisfied clause 600.223(2)(a) because her last substantive visa was not a Subclass 403 visa, she failed to satisfy criterion 3004(c) of Schedule 3. The Tribunal was not satisfied that her failure to hold a substantive visa was due to factors beyond her control, noting her admission of being mistaken about her visa expiry date, and that she felt stressed and overwhelmed. Consequently, the Tribunal concluded that Ms. Xu did not meet the requirements of clause 600.223.

The Tribunal affirmed the decision not to grant Ms. Xu a Visitor (Class FA) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case, then, is whether the applicant meets the requirements of cl.600.223. That clause provides: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.Was the applicant in Australia at the time of application? The Tribunal is satisfied that the applicant was in Australia at the time of application, being 25 June 2020. This is not an issue in dispute.Did the applicant hold a substantive visa at the time of application? The Tribunal is satisfied that the applicant did not hold a substantive visa at the time of application. As confirmed by the applicant at the Tribunal hearing, the last substantive visa held by her was a Working Holiday visa (TZ 417) which ceased on 2 June 2020. Findings on Clause 600.223(1) As the applicant was in Australia and did not hold a substantive visa at the time of application, cl.600.223(1) is not applicable.Did she hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream? The last substantive visa was not one of these visas as it was a Working Holiday (TZ 417) visa. She therefore satisfies cl. 600.223(2)(a). She must also satisfy cl.600.223(b).Does the applicant meet cl.600.223(b) in that she satisfies Schedule 3 criteria? The issue is whether the applicant satisfies cl.600.223(2)(b), which requires the applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005. In regard to Schedule 3 criteria 3004, the Tribunal must be satisfied of all of the following:·the applicant is not the holder of a substantive visa because of factors beyond his or her control – criterion 3004(c);·there are compelling reasons for granting the visa – criterion 3004(d);·the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant – criterion 3004(e);·the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa – criterion 3004(f);·the applicant intends to comply with any conditions of the visa – criterion 3004(g); and·the last visa or entry permit held (if any) 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 – criterion 3004(h).Is the applicant not the holder of a substantive visa because of factors beyond his or her control?

Decision

Reasons for decision

For the reasons set out above, the Tribunal is satisfied that the applicant does not meet the requirements of criterion 3004. Therefore the applicant does not meet the requirements of cl.600.223. DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.