Xu (Migration)
[2021] AATA 5480
•12 October 2021
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 affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3004CASES
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151Su 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.
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?
The Tribunal has considered the applicant’s reasons for not being the holder of a substantive visa at the time of the application for the present visa and whether this was because of factors beyond her control. Her date of application was 25 June 2020.
In submissions to the Department dated 8 November 2020, the applicant stated:
“… My name is Shi Ting XU, and I would like to reply to the s57 natural justice letter which I
received on 3rd Nov 2020.
I planned to apply for the student visa after my working holiday visa and choose further
study at Melbourne Education Institute in Melbourne, Australia. I am hoping to have a better
chance to return to my own country have the advantage of this language in terms of job
hunting after my study in Australia.
After realizing my visa has been expired, I submitted my Bridging visa application
immediately. I am sorry I accidentally got my working holiday expires dates mixed up due
to the coronavirus pandemic, I was talking to my mother and she told me that a quite few
people in our hometown in Taiwan had contracted coronavirus and very very sick. I was so
worried for my mother that I mistook the dates and accidentally gave the wrong date. My
previous working holiday visa expired on the 2nd June 2020. It was only two days past the
date.
I would like to give my apologies to the immigration department for breaching the visa
condition. I did not intentionally breach my visa condition in Australia. I am sincerely sorry. I
will make my very best to make sure this mistake won’t happen again.
Unfortunately, due to COVID epidemic at the time
According to the interview with Bridging Visa E officer, I was advised to apply for the tourist
visa 600 on paper online, I submit the paper visa application on the same day after the
phone conversation with officer.
I am so sorry to mention this but the contract with the landlord was about to expire, plus the
COVID lockdown, I was afraid I was about to be kicked out by the landlord. Everything is a
mess back to that time. I hope that the Immigration Department can give me this opportunity so that I can have the chance to make a future for myself and to rectify the mistakes I have made.
I will take this opportunity to excel in my studies and make my parents proud of what I have
achieved.I look forward in anticipation for your decision regarding my future here in Australia...”At the Tribunal hearing on 30 September 2021, the Tribunal discussed with the applicant the matters raised in her submission to the Department. The Tribunal put to the applicant that although she had made a mistake about the date of expiry of her working holiday visa, it appeared from her submission that it was not beyond her control to apply for a substantive visa before the expiry of the visa. The applicant said that because of the COVID-19 pandemic she was quite stressed and by the time she realised the visa had expired, it was too late to apply for the visitor visa. She said that on 19 May 2020 she applied for school, and received an acceptance, and she signed a contract with an agent on 3 June 2020. She agreed that it was open to her to have applied for the visa prior to the expiry of her visa on the 2nd of June. She said that she had become confused and thought that the date of expiry was 7 June 2020. She said that she was preoccupied with COVID-19 and did not notice the date of expiry of her visa. Asked if there was anything else she wished to submit in support of her review, she said that she had a conversation with a Departmental officer on 19 June 2020 who advised her to apply for a visitor visa first, and then a student visa.
As the representative arrived late to the hearing, the Tribunal summarised the discussion which had taken place. The representative, Tao Jiang, submitted that while courts take a narrow interpretation as to ‘factors beyond control, he said that during the time when her visa expired, many unfortunate things happened to the applicant, and she became overwhelmed and did not realise the visa had expired.
In deciding whether there were ‘factors beyond the applicant’s control’, the Tribunal has considered the applicant’s submissions carefully in light of judgments in Su v MIAC [2007] FMCA 318; Liu v MIAC [2010] FMCA 60; and Montero v MIBP [2014] FCCA 946.
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.
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
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. 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.
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. The courts 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.
The Tribunal has sympathy for the applicant as she was clearly stressed at the time of the expiry of the visa due to circumstances at home, her lease, and the impact of the COVID-19 pandemic on her hometown. However, the Tribunal is not satisfied that she was not the holder of a substantive visa at the time of application because of factors beyond her control for the following reasons.
The applicant was the holder of a Working Holiday visa which ceased in accordance with the grant notice on 2 June 2020. The applicant was able to apply for another substantive visa until that date but did not do so. She only applied for a new visa on 25 June 2020. The Tribunal has taken into account the fact that the applicant has had experience with the migration system such that she would have been aware of the need to apply for visas within time deadlines. She first arrived in Australia on 2 June 2018 as the holder of a Working Holiday visa (TZ 417) and was granted a further Working Holiday visa on 9 May 2019. She also applied as the secondary applicant on a student visa (TU 500) on 9 April 2020 which was found to be invalid on 14 April 2020. She confirmed that she had an Immi account, and knew that the date of expiry was noted on her visa. The Department of Home Affairs website provides information as follows, under the visitor visa section ‘Meet other criteria’, You can only apply online if you are in Australia and hold a substantive visa.[2] Although the Tribunal accepts that the COVID-19 pandemic may have caused stress for the applicant, the Tribunal notes that the applicant’s substantive visa expired on 2 June 2020 which was some time after COVID-19 had become a significant issue in Australia and globally. The Tribunal accepts that the applicant may have mixed up the dates of expiry of her visa but notes that in the case of Liu v MIAC [2010] FMCA 60 the courts found that misunderstanding of the visa system is not a factor beyond a person’s control. Further in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 the courts found that it was difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of the person. The court said that the test is whether the applicant might have been able to do something to prevent the relevant event occurring, and whether in a practical or realistic sense he or she could do that. The fact that the applicant was mistaken as to the date of expiry of her substantive visa is not a factor beyond her control. The onus is on an applicant to be aware of migration obligations. The applicant has not presented any persuasive evidence as to why she could not have lodged the new visitor visa during the time when she was the holder of a substantive visa. The Tribunal is satisfied that in this case the applicant could have applied for her visitor visa in the period before expiry of the substantive visa.
[2] Visitor visa (subclass 600) Tourist stream (apply in Australia) (homeaffairs.gov.au)
The Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time of application for the visa because of factors beyond her control.
Other criteria in 3004
As the Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control it is not necessary to consider the other criteria set out in 3004.
Findings
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 Marquard
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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